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21-448 PS 2005

THE UNITED STATES NUCLEAR

LEGACY IN THE MARSHALL

ISLANDS: CONSIDERATION OF

ISSUES RELATING TO THE

CHANGED CIRCUMSTANCES

PETITION

OVERSIGHT HEARING

BEFORE THE

COMMITTEE ON RESOURCES

JOINT WITH THE

COMMITTEE ON INTERNATIONAL RELATIONS

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

May 25, 2005

Committee on Resources Serial No. 109-15

Committee on International Relations

Serial No. 109-21

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

or

Committee address: http://resourcescommittee.house.gov

(II)

COMMITTEE ON RESOURCES

RICHARD W. POMBO, California, Chairman

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

DON YOUNG, Alaska

JIM SAXTON, New Jersey

ELTON GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

WAYNE T. GILCHREST, Maryland

KEN CALVERT, California

BARBARA CUBIN, Wyoming

Vice Chair

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

CHRIS CANNON, Utah

JOHN E. PETERSON, Pennsylvania

JIM GIBBONS, Nevada

GREG WALDEN, Oregon

THOMAS G. TANCREDO, Colorado

J.D. HAYWORTH, Arizona

JEFF FLAKE, Arizona

RICK RENZI, Arizona

STEVAN PEARCE, New Mexico

HENRY BROWN, JR., South Carolina

THELMA DRAKE, Virginia

LUIS G. FORTUN ̃ O, Puerto Rico

CATHY McMORRIS, Washington

BOBBY JINDAL, Louisiana

LOUIE GOHMERT, Texas

MARILYN N. MUSGRAVE, Colorado

VACANCY

DALE E. KILDEE, Michigan

ENI F.H. FALEOMAVAEGA, American

Samoa

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

FRANK PALLONE, JR., New Jersey

DONNA M. CHRISTENSEN, Virgin Islands

RON KIND, Wisconsin

GRACE F. NAPOLITANO, California

TOM UDALL, New Mexico

RAU ́ L M. GRIJALVA, Arizona

MADELEINE Z. BORDALLO, Guam

JIM COSTA, California

CHARLIE MELANCON, Louisiana

DAN BOREN, Oklahoma

GEORGE MILLER, California

EDWARD J. MARKEY, Massachusetts

PETER A. DEFAZIO, Oregon

JAY INSLEE, Washington

MARK UDALL, Colorado

DENNIS CARDOZA, California

STEPHANIE HERSETH, South Dakota

STEVEN J. DING, Chief of Staff

LISA PITTMAN, Chief Counsel

JAMES H. ZOIA, Democrat Staff Director

JEFFREY P. PETRICH, Democrat Chief Counsel

(III)

COMMITTEE ON INTERNATIONAL RELATIONS

HENRY J. HYDE, Illinois, Chairman

JAMES A. LEACH, Iowa

CHRISTOPHER H. SMITH, New Jersey,

Vice Chairman

DAN BURTON, Indiana

ELTON GALLEGLY, California

ILEANA ROS-LEHTINEN, Florida

DANA ROHRABACHER, California

EDWARD R. ROYCE, California

PETER T. KING, New York

STEVE CHABOT, Ohio

THOMAS G. TANCREDO, Colorado

RON PAUL, Texas

DARRELL ISSA, California

JEFF FLAKE, Arizona

JO ANN DAVIS, Virginia

MARK GREEN, Wisconsin

JERRY WELLER, Illinois

MIKE PENCE, Indiana

THADDEUS G. MCCOTTER, Michigan

KATHERINE HARRIS, Florida

JOE WILSON, South Carolina

JOHN BOOZMAN, Arkansas

J. GRESHAM BARRETT, South Carolina

CONNIE MACK, Florida

JEFF FORTENBERRY, Nebraska

MICHAEL MCCAUL, Texas

TED POE, Texas

TOM LANTOS, California

HOWARD L. BERMAN, California

GARY L. ACKERMAN, New York

ENI F.H. FALEOMAVAEGA, American

Samoa

DONALD M. PAYNE, New Jersey

ROBERT MENENDEZ, New Jersey

SHERROD BROWN, Ohio

BRAD SHERMAN, California

ROBERT WEXLER, Florida

ELIOT L. ENGEL, New York

WILLIAM D. DELAHUNT, Massachusetts

GREGORY W. MEEKS, New York

BARBARA LEE, California

JOSEPH CROWLEY, New York

EARL BLUMENAUER, Oregon

SHELLEY BERKLEY, Nevada

GRACE F. NAPOLITANO, California

ADAM B. SCHIFF, California

DIANE E. WATSON, California

ADAM SMITH, Washington

BETTY MCCOLLUM, Minnesota

BEN CHANDLER, Kentucky

DENNIS A. CARDOZA, California

THOMAS E. MOONEY, SR., Staff Director/General Counsel

ROBERT R. KING, Democratic Staff Director

SUBCOMMITTEE ON ASIA AND THE PACIFIC

JAMES A. LEACH, Iowa, Chairman

DAN BURTON, Indiana, Vice Chairman

ELTON GALLEGLY, California

DANA ROHRABACHER, California

STEVE CHABOT, Ohio

RON PAUL, Texas

JOE WILSON, South Carolina

ENI F. H. FALEOMAVAEGA, American

Samoa

SHERROD BROWN, Ohio

EARL BLUMENAUER, Oregon

DIANE E. WATSON, California

ADAM SMITH, Washington

GARY L. ACKERMAN, New York

JAMES W. MCCORMICK, Subcommittee Staff Director

LISA M. WILLIAMS, Democratic Professional Staff Member

DOUGLAS ANDERSON, Professional Staff Member & Counsel

TIERNEN M. DONALD, Staff Associate

(V)

CONTENTS

Page

Hearing held on Wednesday, May 25, 2005 .......................................................... 1

Statement of Members:

Bordallo, Hon. Madeleine Z., a Delegate in Congress from Guam,

Prepared statement of .................................................................................. 45

Faleomavaega, Hon. Eni F.H., a Delegate in Congress from American

Samoa ............................................................................................................ 3

Leach, Hon. James A., a Representative in Congress from the State

of Iowa ........................................................................................................... 5

Prepared statement of ............................................................................... 5

Pombo, Hon. Richard W., a Representative in Congress from the State

of California ................................................................................................... 1

Prepared statement of ............................................................................... 2

Statement of Witnesses:

Bearden, David, Analyst in Environmental Policy, Congressional

Research Service, Library of Congress ........................................................ 101

Prepared statement of ............................................................................... 103

Response to questions submitted for the record ..................................... 105

Bouville, Andre, Ph.D., Division of Cancer Epidemiology and Genetics,

National Cancer Institute, U.S. Department of Health and Human

Services .......................................................................................................... 19

Prepared statement of ............................................................................... 21

Cary, Steven V., Deputy Assistant Secretary for Health, U.S. Department

of Energy ....................................................................................................... 13

Prepared statement of ............................................................................... 14

Response to questions submitted for the record ..................................... 16

Krawitz, Howard M., Acting Deputy Assistant Secretary for East Asian

and Pacific Affairs, U.S. Department of State ............................................ 6

Prepared statement of ............................................................................... 8

Response to questions submitted for the record ..................................... 11

Mauro, John, Ph.D., CHP, Senior Vice President, S. Cohen & Associates,

Red Bank, New Jersey ................................................................................. 85

Prepared statement of ............................................................................... 87

Response to questions submitted for the record ..................................... 92

Plasman, Judge James H., Chairman, Marshall Islands Nuclear Claims

Tribunal ......................................................................................................... 59

Prepared statement of ............................................................................... 61

Response to questions submitted for the record ..................................... 68

Simon, Steven L., Ph.D., National Cancer Institute, National Institute

of Health, U.S. Department of Health and Human Services,

Washington, D.C. .......................................................................................... 93

Prepared statement of ............................................................................... 96

Response to questions submitted for the record ..................................... 100

Zackios, Hon. Gerald M., Minister of Foreign Affairs, Government of

the Republic of the Marshall Islands .......................................................... 46

Prepared statement of ............................................................................... 48

Response to questions submitted for the record ..................................... 57

Letter submitted for the record ................................................................ 77

Additional materials supplied:

Weisgall, Jonathan M., on behalf of The Peoples of Bikini, Enewetak,

Rongelap, and Utrok, Statement submitted for the record ....................... 120

(1)

JOINT OVERSIGHT HEARING ON ‘‘THE

UNITED STATES NUCLEAR LEGACY IN THE

MARSHALL ISLANDS: CONSIDERATION OF

ISSUES RELATING TO THE CHANGED

CIRCUMSTANCES PETITION.’’

Wednesday, May 25, 2005

U.S. House of Representatives

Committee on Resources, joint with the

Subcommittee on Asia and the Pacific of the

Committee on International Relations

Washington, D.C.

The Committees met jointly, pursuant to notice, at 2:00 p.m., in

Room 1324, Longworth House Office Building, Hon. Richard W.

Pombo [Chairman of the Committee on Resources] presiding.

Present from Committee on Resources: Representatives Pombo,

Duncan, Gilchrest, Flake, Drake, Fortuno, Kildee, Faleomavaega,

Abercrombie, Christensen, Tom Udall, Bordallo and Inslee.

Present from Subcommittee on Asia and the Pacific, Committee

on International Relations: Representatives Leach, Rohrabacher,

Faleomavaega and Watson.

STATEMENT OF THE HON. RICHARD W. POMBO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

The CHAIRMAN. The Committee on Resources and House International Relations Committee are meeting today for an oversight

hearing to hear testimony on issues relating to the United States

nuclear legacy in the Republic of the Marshall Islands. Under Rule 4(g) of the Committee Rules, any oral opening statements at hearings are limited to the Chairman and Ranking

Minority Member of both committees. This will allow us to hear

from our witnesses sooner and help Members keep to their schedules. Therefore, if other Members have statements, they can be included in the hearing record under unanimous consent.

First, on behalf of the full Committee, I would like to welcome

Members from the Subcommittee on Asia and the Pacific who serve

on the House International Relations Committee. Specifically, I

would like to thank both Chairman Leach and Ranking Member

Faleomavaega, who the Members of this committee also know well,

for having an interest in holding a joint hearing. The work of these

2

two committees on issues that relate to the Republic of the Marshall Islands is both substantial and significant. Most recently, the passage of the revised Compact of Free Asso- ciation in the 108th Congress displayed a common bipartisan spirit

on issues relating to the freely associated states. The Resources

Committee alone has had over 30 hearings relating to the Compact

of Free Association over the years, but never have we examined the

specific issues that we will cover today. To that end, our witnesses

today possess a strong background through their work in the Republic of the Marshall Islands (RMI) and those programs that affect Marshallese residents on a daily basis.

These Committees are meeting jointly today to examine the U.S.

nuclear legacy in the RMI as it relates to revision within the original Compact of Free Association. This provision allowed the RMI

to petition the Congress should they allege specific loss of persons

or property that have been discovered since the passage of the

original compact in 1986. In response to this petition, Congress was

provided with a report received late last year that fully reviewed

what is commonly called the Changed Circumstance Petition.

It is important to note that performing oversight on this issue is

very complex, involving continued, complicated scientific debate,

and I had the pleasure of meeting with Foreign Minister Zackios

separately this week. Though I can appreciate the desire for taking

a frank and thoughtful look at this issue of great importance to the

RMI, interpretations of past actions and the application of existing

science are many. Still, we must start down this path, and ask serious questions of past, present and future U.S. involvement. If we

don’t, we essentially refuse to confront an issue of primary importance that relates to the U.S. nuclear legacy in these islands.

We have been able to examine this issue in the months since the

Administration submitted its review with the assistance of those

who reviewed the petition, the continued input of the RMI Government, that of representatives of the outer atolls, as well as the active involvement of outside experts like the Congressional Research

Service.

Today we have with us individuals from the RMI who have traveled a great distance to speak to the Changed Circumstances Petition and its role in the U.S. involvement in their islands. The hospitality they showed members of this committee, as well as Secretary Norton during the 108th Congress and our trip to the RMI

will not be forgotten soon. In fact, even at the time we discussed

this issue with local senators, and we welcome you all to Washington as well as the other witnesses who have spent an impressive

amount of time reviewing the multi-layered subject of our hearing.

I thank the witnesses for coming and I look forward to hearing

their testimony.

I want to recognize Mr. Faleomavaega for an opening statement.

[The prepared statement of Chairman Pombo follows:]

Statement of The Honorable Richard W. Pombo, Chairman,

Committee on Resources

Good afternoon.

First, on behalf of the full Committee, I would like to welcome Members from the

subcommittee on Asia and the Pacific who serve on the House International Relations Committee. Specifically, I would like to thank both Chairman Leach and

3

Ranking Member Faleomavaega, who the Members of this Committee also know

well, for having an interest in holding a joint hearing. The work of these two Committees in issues that relate to The Republic of the Marshall Islands is both substantial and significant. Most recently, the passage of the revised Compact of Free

Association in the 108th Congress displayed a common bipartisan spirit on issues

relating to the Freely Associated States. The Resources Committee alone has had over 30 hearings relating to the Compact of Free Association over the years, but never have we examined the specific issues

that we will cover today. To that end, our witnesses today possess a strong background through their work in the RMI and those programs that affect Marshallese

residents on a daily basis. These Committees are meeting jointly today to examine the U.S. nuclear legacy in the RMI as it relates to a provision within the original Compact of Free Association. This provision allowed the RMI to petition the Congress should they allege specific loss of persons or property that have been discovered since the passage of the

original Compact in 1986. In response to this petition, Congress was provided with

a report received late last year that fully reviewed what is commonly called the

‘‘Changed Circumstances Petition.’’ It is important to note that performing oversight on this issue is very complex, involving continued complicated scientific debate. Having had the pleasure of meeting with Foreign Minister Zackios separately this week, though, I can appreciate the desire for taking a frank and thoughtful look at

this issue of great importance to the RMI. Interpretations of past actions and the

application of existing science are many. Still, we must start down this path to ask

serious questions of past, present, and future U.S. involvement. If we don’t, we essentially refuse to confront an issue of primary importance that relates to the U.S.

nuclear legacy in these islands. We have been able to examine this issue in the months since the Administration

submitted its review with the assistance of those who reviewed the Petition, the continued input of the RMI Government, that of representatives of the outer atolls, as

well as the active involvement of outside experts like the Congressional Research

Service.

Today we have with us individuals from the RMI, who have traveled a great dis- tance to speak to the Changed Circumstances Petition and its role in U.S. involvement in their islands. The hospitality they showed Members on this Committee as

well as Secretary Norton during the 108th Congress and our trip to the RMI will

not be soon forgotten. In fact, even at that time we discussed this issue with local

Senators. We welcome you all to Washington as well as the other witnesses who

have spent an impressive amount of time reviewing the multi-layered subject of our

hearing. I thank the witnesses for coming and look forward to their testimony.

STATEMENT OF THE HON. ENI F.H. FALEOMAVAEGA, A

DELEGATE IN CONGRESS FROM THE TERRITORY OF

AMERICAN SAMOA

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. I certainly want to thank you for calling this hearing this afternoon. Certainly I also

want to thank our distinguished Member, Mr. Rahall, members of

the full committee. I also would like to recognize also my colleague

and dear friend, the Chairman of the House Subcommittee on

International Relations on Asia and the Pacific, the gentleman

from Iowa, Mr. Leach, and certainly thank Chairman Hyde and

Chairman Lantos of the International Relations Committee for

their support in calling this oversight hearing. Mr. Chairman, for some time we have worked together to recog- nize the strength of our country’s relationship with the Republic of

the Marshall Islands, and to amend the Compact of Free Association to better provide for the needs of the people who continue to

suffer the consequences of our nuclear testing program in the Pacific.

As the Ranking Member of the International Relations Subcommittee on Asia and the Pacific and as a Pacific islander, I feel

4

a special responsibility to the interests of our Pacific island communities, especially from the Marshall Islands, who have sacrificed

greatly for our common good.

From 1946 to 1958, the United States detonated 67 nuclear

weapons in the Marshall Islands, representing nearly 80 percent of

all atmospheric tests ever conducted by the United States. If one

were to calculate the net yield of these tests it would be equivalent

to the detonation of 1.7 Hiroshima bombs every day for 12 years.

These tests exposed the people of the Marshall Islands to severe

health problems and genetic abnormalities for generations.

The effects of the U.S. nuclear testing program in the Marshall

Islands, Mr. Chairman, I submit, continues to devastate the Marshall Islands, and the funds provided by the United States under

the Compact of Free Association are grossly inadequate to provide

for health care, environmental monitoring, personal injury claims

or land and property damage.

Pursuant to the Compact and the accompanying Section 177

Agreement, the United States accepted responsibility for the damage to the property and environment of the Marshall Islands and

the health of its people. This agreement did not constitute a final

settlement of all claims as evidenced by the inclusion of Article IX

authorizing the Government of the Marshall Islands to petition the

U.S. Congress in the event of, and I quote, ‘‘changed circumstances

that render the provisions of this agreement manifestly inadequate.’’

The Government of the Republic of the Marshall Islands has submitted a request to Congress based on a changed circumstances

claim. The Administration, however, as represented by the State

Department this morning and even in its report evaluating the

Marshall Islands’ request rejected the arguments made in the Marshall Islands’ petition, contending that the claims did not constitute

changed circumstances as defined in the agreement.

For the record, I want to make it clear, Mr. Chairman, that I

take issue with the State Department’s position. While the State

Department denies that there is a legal basis for Congress to hear

this petition, the fact remains that we are here today to decide this

for ourselves.

Today we have an opportunity to live up to the responsibility we

embraced over 50 years ago when we began nuclear testing in the

Pacific. We should not be asking how we can sidestep this responsibility, but we should instead ask ourselves have we done everything we can possibly do to make things right for the people of the

Marshall Islands who have sacrificed their lives, their health and

their lands for the benefit of the United States.

I submit, Mr. Chairman, that regardless of whether this petition

conforms to the State Department’s conception of a proper legal

basis for Congress’s consideration, I do submit we have a strong,

valid, humanitarian basis for hearing what the representatives of

the Marshall Islands have to say to ensure that we fulfill our responsibilities to them.

I have reviewed the petition. I have researched this issue extensively, and I believe enough evidence exists to justify a thorough

review of the changed circumstances in the petition.

5

I want to thank the representatives of the Republic of the Marshall Islands and the members of the State Department who are

here today to testify, and I certainly welcome them and their testimony. Thank you, Mr. Chairman.

The CHAIRMAN. Thank you. I recognize the Chairman of the Subcommittee, Chairman Leach.

STATEMENT OF THE HON. JAMES A. LEACH, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF IOWA

Mr. LEACH. Thank you very much, Mr. Chairman, for co-hosting this hearing, and I have a full statement I will just ask unanimous

consent to put in the record. But let me first say how honored I

am to deal with this issue, and second, how honored the Congress

is to have a distinguished gentleman from the Pacific to lend a perspective that I think is very important to this body. Second, I would like to apologize, if I could, to our foreign min- ister, Mr. Zackios, who I had hoped to meet with earlier today and

was unable to, and so I hope later, if that is possible, that we can

meet.

In any regard, I appreciate the opportunity to be here and have a little bit more to say that will be in the record. Thank you.

The CHAIRMAN. Without objection, the Chairman’s full statement will be included in the record.

[The prepared statement of Chairman Leach follows:]

Statement of The Honorable James A. Leach, Chairman, Subcommittee on

Asia and the Pacific, Committee on International Relations

On behalf of the Subcommittee on Asia and the Pacific, I would like to thank

Chairman Pombo and Ranking Member Rahall for hosting today’s joint hearing. We

look forward to receiving testimony from the numerous experts and officials in attendance today, and I would like to extend a particular welcome to The Honorable

Gerald Zackios, Foreign Minister of the Republic of the Marshall Islands. The United States has shared a uniquely close and mutually beneficial relation- ship with our friends in the Marshall Islands for the past half-century. For almost

forty years after World War Two, the U.S. administered the Marshall Islands as

part of the United Nations Trust Territory of the Pacific Islands. Eventually, the

Marshall Islands became a sovereign state and entered into a Compact of Free Association with the United States in 1986. The Compact was intended to ensure selfgovernment for the Republic of the Marshall Islands, to assist in its economic development, and to advance certain national security objectives. During the last Congress, the Committee on Resources and the Committee on International Relations

cooperated closely in the drafting and enactment of House Joint Resolution 63,

major legislation amending and reaffirming the Compact of Free Association with

the RMI, and securing billions of dollars of U.S. assistance over the next 20 years. From 1946 to 1958, during the period of UN Trusteeship, the United States con- ducted 67 atmospheric nuclear weapons tests in the Marshall Islands atolls of Bikini and Enewetak. Whether or not those massive detonations were critical to the

credibility and reliability of our nuclear deterrent during the Cold War, they represent the most vivid examples of a strategic partnership that stretches back to the

Pacific Campaign of the Second World War. Regrettably, they also produced a detrimental health and environmental legacy that affected many Marshallese. Last year,

on the 50th anniversary of ‘‘Castle Bravo,’’ the largest of those tests, the House of

Representatives took the opportunity (in H.Con.Res. 364) to recall the mutual sacrifice that our peoples have shared during the last half-century, and to commit ourselves to maintaining our special friendship in the decades ahead.

According to the Congressional Research Service, the United States has spent approximately $530 million in the Marshall Islands on nuclear test-related compensation and assistance. In connection with the original Compact of Free Association, the

United States and the RMI concluded a $150 million agreement that constituted

6

‘‘the full settlement of all claims, past, present and future—which are based upon,

arise out of, or are in any way related to the Nuclear Testing Program.’’ But the

‘‘Changed Circumstances’’ provision of that agreement also recognizes the right of

the RMI to petition the Congress for additional, ex gratia compensation on the basis

of subsequently discovered test-related damage that ‘‘could not reasonably have

been identified’’ at the time of the agreement, and that renders the prior agreement

‘‘manifestly inadequate.’’

In September 2000, the Republic of the Marshall Islands filed a ‘‘Changed Circumstances Petition’’ with the Congress, seeking approximately $3.3 billion in additional compensation. In November 2004, in response to a Congressional request, the

U.S. Departments of State, Energy, and Defense issued an Administration report

analyzing the Petition, which rejects the argument that the Petition’s claims constitute ‘‘changed circumstances.’’

The RMI Changed Circumstances Petition is the subject of robust and complex

scientific, methodological, and legal debate. It is my hope that today’s hearing will—

in a balanced and responsible way—help to unpack and clarify these issues for our

Committees, and serve to maintain the deep friendship that exists between our two

nations.

The CHAIRMAN. I would like to introduce our first panel. I would

like to welcome Mr. Howard Krawitz, Acting Deputy Assistant Secretary at the Department of State; Mr. Steven Cary, Deputy Assistant Secretary for Health at the Department of Energy; as well as

Dr. Andre Bouville from the National Cancer Institute to our hearing today to talk about how the Administration views this topic.

Before they give their testimony, I wish to continue the customary practice of the Committee of swearing in all witnesses as

provided under Rule 4(f). If I could have you stand and raise your

right hand.

[Witnesses sworn.]

The CHAIRMAN. Thank you. You may be seated. Let the record

show they all answered in the affirmative.

Welcome to the Committee. We are going to being with you, Mr.

Krawitz. As you have been told before, the oral testimony is limited

to 5 minutes. Your entire written testimony will be included in the

record. So if you could just summarize your complete written testimony for me, I would appreciate it.

Mr. Krawitz.

STATEMENT OF HOWARD M. KRAWITZ, ACTING DEPUTY

ASSISTANT SECRETARY FOR EAST ASIAN AND PACIFIC

AFFAIRS, U.S. DEPARTMENT OF STATE

Mr. KRAWITZ. Chairman Pombo, Chairman Leach, distinguished

Members, thank you for inviting me to discuss the Republic of the

Marshall Islands, the RMI’s Changed Circumstances Request and

the Administration’s evaluation prepared at Congress’ request

As the distinguished Member mentioned, between 1946 and 1958

the United States did carry out 67 nuclear tests on and near Bikini

and Enewetak atolls in the northern Marshall Islands. We deeply

regret the damage the nuclear tests caused, especially the 1954

‘‘BRAVO’’ accident that affected 253 people downwind. The United

States was and is concerned about the health and well-being of the

RMI’s people and environment.

As a result, beginning in the 1950s, the United States began programs to monitor and remediate the effects of these tests. We

added programs in the 1960s, ’70s and ’80s. We continue to address

these problems today. Since the 1950s we have spent more than

7

$531 million for health and environmental remediation specifically

related to nuclear testing-related problems in the RMI. That assistance is worth over $837 million in ’03 dollars. For many years the

Energy Department has given superior health care to Marshall

Islanders directly affected by the ’40s and ’50s tests, as well as to

other populations not directly affected.

The Administration report to Congress details the hundreds of

millions of dollars we have spent on remediation past and present.

In ’86 we signed the Compact of Free Association. The Section 177

Settlement Agreement, incorporated in the compact, made a full

settlement of all claims, past, present and future resulting from the

U.S. testing program. It gave the RMI $150 million to set up a

Nuclear Claims Fund and provided for an independent Nuclear

Claims Tribunal to adjudicate all claims.

Article IX of the settlement, the Changed Circumstances Provision, allowed the RMI to ask Congress to consider additional compensation for injuries resulting from the test if it could show that

its request met a set of defined injuries—defined criteria. And

these are: the injury must be loss or damage to property and person of the citizens of the Marshall Islands; it must result from the

nuclear testing program; the injury must arise or be discovered

after the effective date of the agreement; the injury could not have

been reasonably identified or known as of the effective of the agreement; and the injury must render the Settlement Agreement’s provisions manifestly inadequate.

Article IX neither guarantees additional compensation nor commits the Congress to authorize or appropriate funds.

In 2000, the RMI, citing Article IX, asked Congress to consider

compensation for claims of $3 billion. In March 2002 the Congress

asked the Administration to prepare an evaluation. The State Department convened a working group. U.S. Government departments and technical agencies carefully and methodically reviewed

the RMI request, as well as existing scientific studies of nuclear

testing’s impact on the Marshall Islands.

In January of this year, the State Department gave the Congress

the Administration’s evaluation that the RMI submission does not

meet the criteria of Changed Circumstances as defined in Article

IX, and that there is no legal basis under the settlement for considering additional payments. A copy of the Administration report has

been submitted for the record.

Let me quickly look at some of the areas that the RMI has

claimed. The RMI asserts the radioactive fallout significantly affected an area well beyond the northern atolls and islands. Most

scientific evidence shows the elevated radiation levels are limited

to the most northerly areas, and even more, that many historically

inhabited areas can be resettled under specific conditions.

At the time of the settlement, the RMI acknowledged that some

islands would be less habitable than others and that some would

have limited use, and the Government of the RMI assumed responsibility for controlling those areas affected by nuclear tests.

The RMI seeks comprehensive primary, secondary and tertiary

health care for all people of the Marshall Islands for 50 years. The

argument seeks to tie, without substantiation, current public

health and medical problems in the RMI to the testing. For the

8

populations on the atolls where testing occurred the United States

has for years provided extensive medical treatment. The settlement

agreement set up the Nuclear Claims Fund, made $2 million a year

available for 15 years to the people of the four atolls. The estimated

population of Bikini, Enewetak, Rongelap and Utrik atolls in ’54

was 500 people. Today that program serves 13,460 people, onequarter of the national population. The program was to expire in

’01. The Congress extended it until ’06.

In 1954, additionally, the Congress mandated a special medical

program for the folks exposed to the ‘‘BRAVO’’ test radiation. The

Energy Department runs this program. Neither the settlement

agreement nor the compact envisioned providing comprehensive

health care for all people in the RMI indefinitely. Article IX offers

no basis for such a program.

For the other categories, I’ll just briefly touch. The Nuclear

Claims Fund, the mixed earnings record, the tribunals making

awards in excess of the funds it had available, these do not constitute changed circumstances under the Article IX. The United

States had no role in the tribunal, either in setting it up, making

awards or decision.

Programs that the RMI is requesting today were considered and

rejected in 1986. They do not constitute changed circumstances.

I would just like to end with the important point, the Administration evaluated the specific question of whether the RMI submission qualified as changed circumstances under the Article IX of 177

Agreement. We found that they do not. The evaluation does not describe the overall U.S.-RMI relationship, our shared history, our

unique friendship, nor does it talk about the overall relationship.

Nuclear relations are but one aspect of our relationship.

The amended compact makes health care a focus for assistance

grants. We and the RMI plan to spend nearly $16 million in compact funds in ’05. We project similar amounts for the next several

years. The RMI received hundreds of millions of compact dollars

over the first 18 years of the association. We are committed to

spend over 1.2 billion in direct assistance and trust fund contributions over the next 20 years. We have set up a trust fund to give

the RMI a source of income after the compact assistance ends. The

RMI is eligible for many HHS public health grants and services,

just as U.S. States are.

Last, I would just like to say we recognize this is a serious continuing public health challenge in the RMI. We are committed to

working with the RMI to meet those challenges. They are our global partner. They are a valued friend. We remain committed and we

look forward to working together on a host of issues of mutual concern to us.

Thank you.

[The prepared statement of Mr. Krawitz follows:]

Statement of Howard M. Krawitz, Acting Deputy Assistant Secretary for

East Asian and Pacific Affairs, U.S. Department of State

Chairman Pombo, Chairman Leach, distinguished Members, thank you very much

for the chance to speak with you today about the important topic of the Government

of the Republic of the Marshall Islands’ Changed Circumstances Request and the

Administration’s report prepared at the request of the Congress.

9

I will start with a brief historical overview. The United States carried out sixty- seven underwater, surface and atmospheric nuclear tests on and near the Bikini

and Enewetak atolls in the northern Marshall Islands between 1946 and 1958,

while they were part of the Trust Territory of the Pacific Islands. The United States

still deeply regrets the 1954 ‘‘Bravo’’ accident that harmed 253 downwind islanders.

We remain concerned about the damage done to the people and environment of the

Marshall Islands caused by the nuclear tests in the 1940’s and 1950’s. The U.S. Government established programs for the people of the Marshall Islands to monitor and remediate the effects of those tests beginning in the 1950’s, with additional programs created in the 1960’s, 1970’s and 1980’s. We remain engaged in

addressing these problems. The United States has spent more than $531 million for

health and environmental remediation specifically related to the nuclear testing program since the 1950’s. That assistance is worth over $837 million in 2003 dollars.

Our colleagues in the Department of Energy continue to provide a superior level of

health care service for those people directly affected by the nuclear tests, and have

in fact provided health care to other populations as well for many years. The Administration’s report in January outlines in great detail in an appendix the hundreds

of millions of dollars the United States has spent in past and present U.S. remediation efforts.

In the 1980’s, the United States and the Marshall Islands negotiated the Compact of Free Association, which went into effect on October 21, 1986 (PL 99-239 Stat.

1770). The Compact included a ‘‘full settlement of all claims, past, present and future’’ resulting from the U.S. nuclear testing program. This Section 177 Settlement

Agreement provided $150 million to the Marshall Islands to establish a Nuclear

Claims Fund and an independent Nuclear Claims Tribunal to adjudicate all claims. Article IX of the Section 177 Settlement Agreement, entitled ‘‘Changed Cir- cumstances,’’ is the only provision for the Government of the Republic of the Marshall Islands (RMI) to request the United States Congress to consider additional

compensation for injuries resulting from the nuclear tests. In order to be the subject

of such a request to Congress under Article IX, an injury: (1) must be loss or damage to property and person of the citizens of the Marshall Islands;

(2) must result from the Nuclear Testing Program;

(3) must arise or be discovered after the effective date of the Agreement (October 21, 1986);

(4) must be injuries that were not and could not reasonably have been identified as of the effective date of the Agreement; and (5) such injuries must render the provisions of the Section 177 Settlement Agree- ment manifestly inadequate. In Article IX, the Governments of the Marshall Islands and the United States also

noted: ‘‘It is understood that this Article does not commit the Congress of the United

States to authorize and appropriate funds.’’

In 2000, citing Article IX of the Section 177 Settlement Agreement, the Government of the Republic of the Marshall Islands submitted to the President of the Senate and the Speaker of the House of Representatives a request that certain claims

totaling over $3 billion be considered by the Congress for compensation. In March

2002, the Senate Energy and Natural Resources Committee and the House Resources Committee formally asked the Administration to evaluate the RMI’s request. Over the following months, the State Department convened a working group

of U.S. Government departments and technical agencies that carefully and methodically reviewed the request and the existing scientific studies of the impact of nuclear

testing in the Marshall Islands.

On January 4, 2005, the State Department submitted the Administration’s evaluation to Chairman Domenici, Senator Bingaman, Chairman Pombo and Congressman Rahall. The RMI’s submission to Congress did not meet the criteria of ‘‘changed

circumstances’’ as required by Article IX of the Section 177 Settlement Agreement,

and there is therefore no legal basis under the Settlement Agreement for considering additional payments. I am submitting a copy of the complete Administration

report as an attachment to this testimony for the record.

Let me briefly address the major areas in which the RMI argues ‘‘changed circumstances.’’ First, the RMI asserts that exposure to radioactive fallout significantly

affected an area well beyond the northern atolls and islands. The vast majority of

scientific evidence, however, documents that the elevated levels of radiation are limited to the most northerly atolls and islands, and that even many historically inhabited northern islands can be resettled under specific conditions. At the time of the

Section 177 Settlement Agreement, the Marshall Islands acknowledged that, within

the northern atolls, some islands would be less habitable than others and some

would only have limited use. The Government of the Marshall Islands took the

10

responsibility to control the use of areas in the Marshall Islands affected by nuclear

tests.

Second, the RMI seeks comprehensive primary, secondary and tertiary health care systems to serve all the people of the Marshall Islands for fifty years. This argument draws an unsubstantiated link between current public health and medical

problems in the Marshall Islands and the U.S. nuclear testing program. In fact, the

United States has provided extensive medical care to the populations living on the

atolls where testing occurred. The Section 177 Settlement Agreement provided $2

million per year for 15 years from the Nuclear Claims Fund to provide medical care

to the people of Bikini, Enewetak, Rongelap and Utrik atolls. The estimated population of the four atolls in 1954 was approximately 500 people. That program currently serves 13,460 people, fully one-quarter of the national population. The Section 177 Settlement program was due to terminate in 2001. Congress has extended

it until 2005.

In addition, starting in 1954, Congress mandated a special medical program for the members of the population of Rongelap and Utrik who were exposed to radiation

resulting from the 1954 ‘‘Bravo’’ test (253 people). This program is run by the Department of Energy. Neither the Section 177 Settlement Agreement nor the larger

Compact envisioned the United States providing comprehensive health care for all

the people of the Marshall Islands indefinitely, and there is no basis under Article

IX to request such a program. Regarding three other categories—personal injury, loss of land use and hardship, and atoll rehabilitation—the RMI claims as ‘‘changed circumstances’’ the fact that

the Nuclear Claims Fund has had a mixed earnings record and that the Nuclear

Claims Tribunal, set up and run by the Marshall Islands, has chosen to award more

funds than generated by the Nuclear Claims Fund. The Tribunal’s decisions to set

award amounts well above the amount of funds available in the Nuclear Claims

Fund do not constitute ‘‘changed circumstances’’ under Article IX of the Section 177

Settlement Agreement. The final broad category of RMI claims includes occupational safety, nuclear stew- ardship and education. The Governments of the Marshall Islands and the United

States decided not to include those types of programs in the Section 177 Settlement

Agreement. The lack of those programs and the desire to have such programs are

not ‘‘changed circumstances’’ as defined in the Settlement Agreement. I would like to close by underscoring an important point. The Administration’s re- port evaluated the specific question of whether the Government of the Republic of

the Marshall Islands’ submission qualified as ‘‘changed circumstances’’ under Article

IX of the Section 177 Settlement Agreement. The Administration’s report does not

describe the overall relationship between the United States and the Republic of the

Marshall Islands. Shared history and common values make our friendship with the

Marshall Islands one of the strongest in the world.

The history of the nuclear testing program and the settlement of claims arising

from that program are but one facet of the unique and longstanding friendship our

two nations enjoy, a relationship of mutual understanding and shared values that

remains strong today. The Compact of Free Association of 1986 and the amendments that went into effect just last year link our two nations together for the foreseeable future and guarantee direct U.S. assistance to the RMI for twenty years.

Under the amended Compact, our two nations have established a trust fund to provide an ongoing source of income for the RMI after Compact assistance ends to be

used for the same purposes as current assistance. The amended Compact highlights

health care as one of the two primary focus areas out of six sectors for assistance

grants. For 2005, the Republic of the Marshall Islands and the United States have

agreed to spend nearly $16 million on health care using Compact funds, and we

project similar amounts for each of the next several years. Hundreds of millions of

dollars in Compact funds flowed to the RMI during the first eighteen years of free

association (1986-2004), and over the next twenty years under the amended Compact, the United States is committed to spend over $1.2 billion in direct assistance

and trust fund contributions. The RMI also remains eligible for a number of categorical and competitive public health grant programs administered by the U.S. Department of Health and Human Services in the same way as U.S. states and territories.

The Administration recognizes serious and continuing public health and medical

challenges in the Marshall Islands and supports the Government’s efforts to meet

those challenges. The Republic of the Marshall Islands is a global partner and a valued friend, and the United States will, through the Compact and other means, remain engaged and committed to building a better future for the people of the Marshall Islands. We look forward to continuing to work together on a host of issues

of mutual concern to both our nations.

Thank you very much for this opportunity.

11

Response to questions submitted for the record by Acting Deputy Assistant

Secretary Howard M. Krawitz

Questions submitted by Chairman Richard Pombo

Question 1: Can you explain to the Committees, in general, why negotiations regarding the request for compensation under Section 177 of the

original Compact were not reflected in the new Compact language the

Administration submitted to Congress in 2003?

Answer:

The Section 177 Settlement Agreement fully settled all claims against the United

States arising out of the Nuclear Testing Program conducted in the Marshall

Islands between 1946 and 1958. Article IX of that agreement does not provide for

or contemplate further negotiations, it simply spells out the particular circumstances under which the Government of the Republic of the Marshall Islands

(GRMI) may request the U.S. Congress to consider providing additional compensation with no obligation on Congress to do so. The GRMI submitted a request to Congress citing Article IX. Congress asked the Administration to evaluate the GRMI request. The Administration provided its evaluation of the request to Congress on

January 3, 2005.

The amendments to the Compact of Free Association were a separate matter negotiated by the Administration under the leadership of the President’s Personal

Representative for Compact Negotiations. Negotiation of the amendments to the

Compact was prompted by section 231 of the original Compact which called for negotiations regarding the expiring provisions of the Compact. At the same time, the

negotiators amended other provisions to reflect lessons learned over the 17 years of

Compact implementation.

The Section 177 Settlement Agreement was a full settlement of the nuclear

claims. The GRMI request to Congress under Article IX of that settlement agreement was properly outside the purview of the Administration’s Compact amendment

negotiations.

Question 2: Your testimony points to the fact that over 13,000 people

receive care for their health needs under the Section 177 Settlement

Program. Does this properly target only the intended beneficiaries of

this program, which continues to be funded by Congress?

Answer:

The Section 177 Settlement Agreement provided two million dollars per year for

15 years from the Nuclear Claims Fund to provide health care services to the people

of Bikini, Enewetak, Rongelap and Utrik atolls affected by the consequences of the

U.S. Nuclear Testing Program and their descendents. Direct U.S. funding of the

‘‘177 medical program’’ ended in 2003, however, through subsequent Congressional

action, some similar services are funded by a grant from the Department of the Interior through September 30, 2005. To be clear, certain peoples of Rongelap and

Utrik atolls already included in the separate Department of Energy’s special medical program, receive only supplemental care from the ‘‘177 health care program.’’

Each of the four atolls determined the eligibility of its people to participate, and,

in addition, the RMI’s national legislature mandated that any person receiving a

compensation award from the Nuclear Claims Tribunal be included. The State Department does not have definitive information on the nearly 15,000 Marshallese enrolled in the ‘‘177 medical program,’’ however we understand that at least some of

the participants almost certainly have no connection to the Nuclear Testing Program and its effects on Bikini, Enewetak, Rongelap or Utrik atolls.

Question 3: Is it the position of the Administration that any responsibility

we had to the RMI with relation to any needs was relinquished by the

$150 million Section 177 Settlement? Are there any continuing needs

that can legally be addressed outside of what we are calling ‘‘changed

circumstances?’’

Answer:

By legally binding agreement between them the United States and the Marshall

Islands agreed that the Section 177 Settlement Agreement constitutes the ‘‘full settlement of all claims, past, present and future, of the Government, citizens and nationals of the Marshall Islands which are based upon, arise out of, or are in any

way related to the Nuclear Testing Program, and which are against the United

States, its agents, employees, contractors and citizens and nationals, and of all

claims for equitable or any other relief in connection with such claims’’. A cornerVerDate 11-MAY-2000 13:32 Oct 24, 2005 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6621 J:\DOCS\21448.TXT HRESOUR1 PsN: HRESOUR1
12

stone of that settlement was the U.S. provision of $150 million to the Marshall

Islands to establish a Nuclear Claims Fund. As indicated by its terms, the Section

177 Settlement Agreement fully settled the nuclear claims. The only opening for a

request for additional compensation was provided by Article IX of the agreement

and it provided only that, if the specified conditions were met, the Marshall Islands

could submit a request to Congress for its consideration but the provision also explicitly stated that there is no obligation on Congress to authorize and appropriate

funds. Article IX merely provides the opportunity to make the request The United

States continues to focus a large part of its assistance efforts and dollars under the

Compact of Free Association towards supporting the RMI’s nationwide health care

system. We believe that the web of existing medical and environmental programs,

including those provided under the Compact, is addressing and will continue to address RMI needs with respect to the legacy of our nuclear testing program.

Questions submitted by Congressman Steve Pearce

Question 1: The Republic of the Marshall Islands is asking for $3.3 billion in compensation for nuclear testing. What is the amount of compensation paid by the United States for compensation to uranium millworkers, nuclear test site workers, and downwinders?

Answer:

The State Department has no authorities with respect to compensation paid by the United States to uranium mill workers, nuclear test site workers, and down

winders and therefore is not in a position to provide the information requested regarding compensation paid to these groups.

Question 2: The compensation for the Republic of the Marshall Islands is

available for personal injury damages without proof of specific proof of

causation. Why are we giving compensation to people without a specific

cause, when we deny U.S. citizens the same compensation?

Answer:

The claims arising out of the U.S. nuclear testing program in the Marshall Islands were legally settled as part of the Compact of Free Association between the

United States and the Marshall Islands enacted into U.S. law in 1986 (P.L.99-239).

The settlement agreement provided for the establishment of an independent tribunal to adjudicate claims. The United States has no control over the working of

the Tribunal, including the level of proof the tribunal requires. Specifically, Article

IV of the Section 177 Settlement Agreement provided that the Government of the

Marshall Islands would establish a claims Tribunal in accordance with its constitutional processes and the Settlement Agreement. The Claims Tribunal is to have jurisdiction to render final determination upon all claims relating to the Nuclear Testing Program. In exercising its jurisdiction, the Claims Tribunal is to be independent

of the legislative and executive powers of the Government of the Marshall Islands.

In making awards, the Claims Tribunal is to take into account the validity of the

claim, any prior compensation made as a result of such claim and such other factors

as it may deem appropriate. In determining any legal issue, the Claims Tribunal

may have reference to the laws of the Marshall Islands, including traditional law,

international law and, in the absence of domestic or international law, to the laws

of the United States. Within this framework, the Tribunal decides the basis on

which it will distribute compensation. The settlement agreement reflects an agreement between the United States and the Marshall Islands, enacted into law, that

the United States would not be involved in the Tribunal’s adjudication or awards

processes. The Tribunal publishes a detailed annual report of its work.

The State Department has no authorities with respect to the handling of domestic U.S. nuclear compensation cases and therefore has no authority to take a position

on the basis on which U.S. citizens are compensated for personal injury damages

without specific proof of causation.

Question 3: Is radiation poisoning not on the list of compensable illnesses? If not, why not?

Answer:

It is our understanding that the independent Nuclear Claims Tribunal has chosen to award compensation for 36 medical conditions, including radiation sickness diagnosed between 1946 and 1958. As explained in answer to the previous question,

under the Section 177 Settlement Agreement as enacted by the U.S. Congress, the

United States has no control over the decisions of the independent Nuclear Claims

Tribunal established by the Government of the Marshall Islands regarding the medical conditions for which it will compensate.

13

Question 4: Wilburn Dunlap in my district just passed away (workflow

#120464.) The Department of Justice said he didn’t have a compensable

illness and would not compensate him, even though he was one of the

first workers at the Trinity Test Site, now White Sands Missile range,

and was the first person to enter the Trinity Test Site crater on September 17, 1945 after a nuclear detonation. He was diagnosed with a cell

mutation as a result of radiation poisoning. He had more than 550

gamma globulin shots and about 27 surgeries to stay alive, yet the U.S.

Government unjustly would not compensate him for his illness. My office has been in contact with the Department of Energy, Department of

Justice and Labor Department. Why do these agencies refuse to compensate either Wilbur, and now his family, even though there is ample

evidence to show his illness was caused by working at the Trinity Test

Site?

Answer:

The State Department has no authorities with respect to the handling of domestic

U.S. nuclear compensation cases and cannot speak for the Departments of Energy,

Justice or Labor regarding the handling of those cases.

The CHAIRMAN. Thank you.

Mr. Cary.

STATEMENT OF STEVEN V. CARY, DEPUTY ASSISTANT

SECRETARY FOR HEALTH, U.S. DEPARTMENT OF ENERGY

Mr. CARY. Mr. Chairman and members of the committees, I am

pleased to be here today to discuss the two Marshall Islands’ programs administered by the Department of Energy, environmental

monitoring and special medical care.

These programs were created by Congress to help citizens of the

Marshall Islands deal with the consequences of the U.S. nuclear

weapons testing. In the interest of time, I will submit my full statement for the record.

The goal of the environmental program, conducted by scientists

at Lawrence Livermore National Laboratory, has been to characterize the radioactive contamination in the Marshall Islands, specifically, Bikini, Enewetak, Rongelap and Utrik atolls.

Data support a number of recommendations for the possible resettlement of these atolls and islands as summarized in my prepared statement. We believe that the Livermore work has provided

a firm foundation from which the Marshall Islands Government

and their people can make informed decisions about resettlement

and land use.

In addition to the environmental monitoring program, the Department of Energy manages a special medical care program. The

program’s primary objective is to provide annual medical screening

examinations and cancer treatment to the 253 individuals who

were in Rongelap and Utrik atolls and were exposed to fallout.

DOE has worked closely with the Republic of the Marshall

Islands to carry out successful and responsive environmental and

medical care programs in accordance with congressional intent.

Both programs are funded for a total of $6 million in the Administration’s Fiscal Year ’06 budget request.

Mr. Chairman, I thank you for this opportunity, and I would be

pleased to answer any questions.

[The prepared statement of Mr. Cary follows:]

14

Statement of Steven V. Cary, Deputy Assistant Secretary for Health, U.S. Department of Energy

Mr. Chairman and Members of the Committees:

I am pleased to be here to discuss the Marshall Islands environmental monitoring and special medical care programs administered by the Department of Energy

(DOE). As you know, these programs were created in response to Congressional direction to help the citizens of the Republic of the Marshall Islands (RMI) with the

environmental and medical consequences of the U.S. atmospheric nuclear weapons

testing program. The atmospheric nuclear weapons test, code-named Castle BRAVO, was conducted

at Bikini atoll in 1954. This test inadvertently deposited radioactive fallout on 253

residents of Rongelap and Utrok. U.S. Navy physicians cared for these individuals

in the days immediately following the test and continued this care when they moved

to Brookhaven National Laboratory in 1956. Under the Compact of Free Association

Amendments Act of 2003 (Public Law 108-188), DOE will continue to provide medical care in the years ahead. Additionally, Public Laws 95-134 and 96-205 require

DOE to conduct environmental monitoring to characterize the radioactivity remaining at the four atolls of Bikini, Enewetak, Rongelap, and Utrok. These monitoring

programs began in 1972-73 at Enewetak atoll and continue today.

DOE Marshall Islands Environmental Monitoring Program

For the past 33 years, the environmental monitoring program has been conducted for DOE by scientists from Lawrence Livermore National Laboratory (LLNL). The

program has sponsored detailed environmental monitoring and agricultural research

studies to characterize current radiological conditions at the Bikini, Enewetak,

Rongelap, and Utrok atolls. Through 2004, the U.S. Government has expended more

than $69 million in this effort.

From 1974 until the 1990s, the goal of the environmental program was to charac- terize the extent and distribution of radioactive fallout contamination in the Marshall Islands. This work has become the standard by which dose assessment and

radioecology programs are measured today. The environmental monitoring process

conducted by LLNL consists of extensive field sample collection and laboratory analysis of vegetation, marine organisms, soil and sediment, terrestrial animal samples,

water samples, and aerosol samples. To date, more than 70,000 environmental samples have been collected and analyzed, providing essential knowledge and understanding about the unique behavior of fallout radionuclides in coral atoll ecosystems

and associated pathways for human exposure. The current mission of the environmental program is to provide high quality sci- entific data and understanding of radiological conditions in the Marshall Islands.

This same information is important in assessing changes in radiological conditions

in association with atoll development or land-use, and in providing fundamental scientific data in support of local remediation programs.

Key Accomplishments

Through the work at LLNL, we now have an accurate characterization and under- standing of the nature and extent of radiation contamination in the northern belt

atolls of Bikini, Enewetak, Rongelap, and Utrok. In addition, DOE has worked closely with local atoll governments to develop a network of whole body counting facilities and other state-of-the-art individual monitoring programs to accurately assess

individual doses to island residents.

Whole body counting facilities have operated on Rongelap Island, Enewetak Island, and Majuro since 1999. These facilities, operated year round by trained

Marshallese technicians under the careful guidance of our Livermore scientists,

allow us to assess potential health risks from actual data rather than relying on

assumptions derived from various dietary scenarios. In combination with environmental monitoring data, residents who receive a whole body count showing the presence of radioactive cesium can make informed decisions about their eating habits

or life-style. Although the work is still in progress in several areas, scientific data

are now available that, along with agricultural research studies conducted on Bikini

Island, support a number of recommendations for the possible cleanup and rehabilitation of islands. I emphasize that these conclusions are based solely on the scientific data and do not take into account other factors that will ultimately play a

role in decisions of the Marshallese people, such as cleanup criteria and resettlement.

• The Utrok people can choose to live on their atoll without concern that their

health will be adversely affected by exposure to residual fallout contamination.

DOE has provided a whole body counter and locally trained technicians to

provide a way for people to have confidence that living on Utrok Island and

15

consuming local foods is not detrimental to their health. LLNL plans to conduct

bioassay monitoring for Utrok islanders to provide an updated assessment of

plutonium exposure in this community based on newly developed, state-of-theart measurement technologies. It is expected that these data will provide additional information to the community regarding whether residual plutonium in

the environment is a significant long-term health hazard.

• The Rongelap people are engaged in an active resettlement program and have

adopted cleanup methods developed by Livermore scientists. The cleanup method being employed includes (1) Replacing surface soils removed from village and

housing areas with a layer of crushed coral, and (2) Adding potassium fertilizer

to areas where food is growing. This mitigation technique, referred to as the

‘‘combined option,’’ is the basis for the resettlement program being implemented

at Rongelap today. We continue to provide radiological monitoring for the ongoing resettlement activities, including plutonium urinalysis for workers involved

in transforming the island into a safe habitat. To date, none of the construction

workers and agricultural laborers, who have the most intense exposure to soil

and dust, have demonstrated levels above that expected from exposure to worldwide fallout contamination.

• The Bikini people could choose to resettle if they, like the Rongelap, employ the

combined option described above. The International Atomic Energy Agency

(IAEA), at the request of the Bikini people, studied the issues and affirmed that

the combined option would be appropriate for the situation on Bikini. Should

Bikini choose to resettle, DOE would provide appropriate medical and environmental monitoring services.

• The Enewetak people have been resettled on Enewetak Island since 1980. Plutonium bioassay and whole body counting results have confirmed that radiation

doses on Enewetak Island are below levels expected from exposure to worldwide fallout contamination and present no health consequences to the population. If the Enewetak people decide to resettle Enjebi Island, DOE has recommended using the combined option, as used on Rongelap Island and proposed

for Bikini Island, for mitigation.

The scientific studies resulting from the LLNL environmental program have undergone eight extensive independent scientific peer reviews from groups of nationally and internationally respected scientists. Two of these reviews were from the

National Academy of Sciences. Six independent scientific groups confirmed the

methods and associated dose calculations used by LLNL.

We believe that the LLNL work has provided timely, relevant, and credible environmental data. The environmental data, together with the independent environmental reviews made possible by trust funds provided through the Department of

Interior, have provided a firm foundation from which the RMI government and their

people can make informed decisions about resettlement and land use.

As DOE completes the bulk of the environmental sampling and agricultural studies over the next few years, we will continue to consult with the RMI and the local

atoll governments. We will continue our record of being responsive to their questions, concerns, and needs and hope to continue our part in answering scientific

questions about radiological contamination in the Marshall Islands environment.

The DOE Marshall Islands Special Medical Care Program

In addition to the environmental monitoring program, the Department manages

a Special Medical Care Program in response to Congressional direction. The program’s primary objective is to provide annual medical screening examinations and

cancer treatment to the 253 individuals who were in Rongelap and Utrok and exposed to fallout from Castle BRAVO. Today, 194 individuals remain in the program

for medical screening and treatment.

Until June 1998, medical care was provided to the Rongelap and Utrok beneficiaries of the program by a team of United States doctors led by Brookhaven National Laboratory who would visit the Marshall Islands twice a year for medical

missions lasting four to six weeks. From June 1998 through July 2005, the Special

Medical Care Program was administered by a Honolulu-based research foundation

with examinations conducted year-round in various clinics in the Marshall Islands.

In 2003, DOE, the RMI government, and the local governments of the Rongelap

and Utrok atolls began a process to make the medical care program more responsive

to the needs of the beneficiaries and be sustainable over the remainder of the lifetimes of the beneficiaries. This led to a revised program scheduled to begin in July

2005, the goals of which are: preventative and curative healthcare for the mandated

population to improve their health status; delivery of healthcare near patients’

homes; community involvement; delivery of healthcare in a culturally appropriate

16

manner; and coordination with other health agencies in the RMI to improve overall

service.

DOE clinics are currently located on Kwajalein Island and in Majuro. Local Marshallese physicians and nurse supervisory personnel see patients daily. Patients

living in Hawaii and in the continental U.S. are serviced by a recognized nationwide health care management organization. We feel that the DOE Special Medical

Care Program will strengthen our ability to carry out the core congressional mandate without escalating the cost of the program. DOE has committed itself to be responsive to the questions, concerns, and needs

of the Marshall Islands people. DOE has worked toward this goal by actively listening to the central and local governments and their communities and giving them

a voice in determining the future direction of the Marshall Islands program. Since

1990, DOE has engaged the local leadership and community members from Bikini,

Enewetak, Rongelap, and Utrok in more than 40 community meetings to discuss the

results of scientific reports as they were completed. In addition, DOE hosts an annual meeting with the RMI central government and representatives from Bikini,

Enewetak, Rongelap, and Utrok to discuss program strengths and weaknesses. Regular RMI/DOE working group meetings are also held, the most recent being February 2005. Since 1999, LLNL has published 11 scientifically peer-reviewed reports providing scientific information and conclusions on the radiological and chemical environment

for the Bikini, Enewetak, Rongelap, and Utrok atolls. For example, RMI scientists

had concerns about the health impacts of materials used in the nuclear devices such

as thallium, a known neurotoxin. LLNL was able to review classified documents and

prepare a report on the quantities of specific materials released and their potential

public health impact. In addition, LLNL has published numerous technical documents intended for use by atoll officials and scientists supporting the U.S. and RMI

governments.

Conclusions

DOE has worked closely with RMI to carry out successful and responsive Mar- shall Islands environmental and medical care programs in accordance with congressional intent and while achieving program efficiency and effectiveness. Both programs are funded at $6.0 million in the Administration’s FY 2006 budget request. We believe that LLNL’s environmental work provides a firm foundation on which

the RMI government and their people can make informed decisions about resettlement and land use. As DOE completes the bulk of the environmental sampling and

agricultural studies over the next few years, we will continue to consult with the

RMI and the local atoll governments. We will continue to maintain a presence in

the Marshall Islands as long as we can contribute to addressing scientific questions

about radiological contamination on Bikini, Enewetak, Rongelap, and Utrok atolls. Similarly, DOE’s Special Medical Care Program will continue to provide sound basic preventative and curative healthcare for the selected population within communities where they live, using additional support from the U.S. Army command

on Kwajalein Island and its hospital to improve overall delivery of medical services. Mr. Chairman, I thank you for this opportunity to share the current status and progress of our programs in the Marshall Islands. I would be pleased to answer any

questions.

Response to questions submitted for the record by Steven V. Cary, Deputy

Assistant Secretary for Health, U.S. Department of Energy

QUESTION FROM CHAIRMAN POMBO

Cleanup Guidelines

Question 1. It is argued in the RMI Petition that the U.S. Government now

uses stricter standards as they apply to radiological remediation. Can

you describe how standards are applied domestically to various sites

such as brownfields and how these standards translate to those used to

evaluate cleanup sufficiency in the RMI?

Answer 1. Cleanup guidelines are unique to each remediation situation. As discussed in the Department of State ‘‘Report Evaluating the Request of the Government of the Republic of the Marshall Islands Presented to the Congress of the

United States of America’’ and in the Congressional Research Service Report ‘‘Republic of the Marshall Islands Changed Circumstances Petition to Congress,’’ the

U.S.’s domestic approaches to cleanup would not translate directly into actions that

would be appropriate for Marshall Islands atolls. This is because the allowable concentration would depend on the potential pathway of human exposure resulting

17

from the intended land use. For example, the extent of cleanup necessary to attain

a standard at DOE sites at Hanford and Rocky Flats would be different than in the

Marshall Islands because the land uses at the DOE sites will be significantly different in terms of public access.

The cleanup standard for the Marshall Islands, based on an Environmental Protection Agency guideline, was selected by the Nuclear Claims Tribunal in 1998. The

Claims Tribunal decision was unilateral and did not include consultation with the

U.S. government.

It is important to note that DOE provides long-term whole body counting to determine if actual internal levels of radiation from eating locally grown foods remain

below the standard adopted by the Marshallese themselves. Marshallese living on

atolls that have been resettled have all shown exposure levels well below the standard selected by the Nuclear Claims Tribunal.

Environmental Monitoring Programs

Question 2. Given the extensive environmental monitoring programs, it

would appear that conditions in even the most directly affected 4 atolls

are shown to be safe for habitation. Your testimony seems to assert that

citizens growing up in the RMI should no longer see the direct effects

of the U.S. nuclear tests. Is this accurate?

Answer 2. Yes. Citizens growing up in the Marshall Islands today are exposed

to radiation levels far below those on Bikini and Rongelap Atolls just after U.S.

nuclear testing concluded in 1958. This is due to the natural decay of cesium-137,

the predominant radioactive fallout material, coupled with its accelerated removal

by environmental transport processes. The impact of radioactive iodine on the thyroid gland was limited to a few hours or days immediately following some of the

tests.

Those who visit islands known to have residual contamination and who eat local

foods there may be at risk of higher exposures. If these activities are undertaken

in moderation, the extra exposure from these visits may not pose health problems.

People who wish to venture to these locations can obtain whole body counts locally

to see the results of their actions and adjust them as desired. These islands are well

known within the communities and, for the most part, were never suitable or used

for habitation.

Funding for Marshall Islands Programs

Question 3. It is encouraging to see a continued budget request for these

DOE programs in the President’s FY2006 Budget request. Can you give

the Committee the specific amounts that are dedicated to the activities

taking place on the ground in the RMI, including health care and costs

to maintain the environmental program?

Answer 3. See table below.

18

QUESTION FROM CONGRESSMAN PEARCE

Compensation for Other Groups

Question 1. The Republic of the Marshall Islands is asking for $3.3 billion in compensation for nuclear testing. What is the amount of compensation paid by the United States for compensation to uranium millworkers, nuclear test site workers, and downwinders?

Answer 1. The compensation program for uranium miners, millers, and downwinders (Radiation Exposure Compensation Act) is managed by the U.S. Department of Justice. We understand from the Department of Justice that as of August 21, 2005, awards to RECA claimants total $947 million. Of this amount, $74

million was paid out of the Energy Employees Occupational Illness Compensation

Fund pursuant to P.L. 108-375 rather than the RECA Trust Fund. We understand

from the Department of Labor that the Department of Labor has also paid an additional $112M to these claimants to date under the Energy Employees’ Occupational

Illness Compensation Program Act.

Criteria for Compensation

Question 2. The compensation for the Republic of the Marshall Islands is

available for personal injury damages without proof of specific proof of

causation. Why are we giving compensation to people without a specific

cause, when we deny U.S. citizens the same compensation?

Answer 2. Article IV of the Section 177 Settlement Agreement provides that the

Government of the Marshall Islands establish a Claims Tribunal with sole jurisdiction to render final determination upon all claims relating to the Nuclear Testing

Program. The 1986 settlement agreement between the United States and the Marshall Islands states that the United States would not be involved in the Tribunal’s

19

adjudication or awards processes. The U.S. nuclear compensation cases are adjudicated by the Department of Justice and the Department of Labor based on legislation enacted by Congress.

Criteria for Compensation

Question 3. Is radiation poisoning not on the list of compensable illnesses?

If not, why not?

Answer 3. The Nuclear Claims Tribunal has chosen to award compensation to

Marshallese citizens for radiation sickness (radiation poisoning) diagnosed between

1946 and 1958. Neither Part B of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), administered by the Department of Labor, nor

the Radiation Exposure Compensation Act (RECA) Program, administered by Department of Justice, include this condition as a compensable illness. For these programs, inclusion of additional compensable illnesses would require a change in statute. However, Part E of EEOICPA covers illnesses arising from occupational exposure to all toxic substances, and therefore would cover this type of illness (provided

that other eligibility requirements are met).

Compensation for Nuclear Workers

Question 4. Wilburn Dunlap in my district just passed away (workflow

#120464.) The Department of Justice said he didn’t have a compensable

illness and would not compensate him, even though he was one of the

first workers at the Trinity Test Site, now White Sands Missile range,

and was the first person to enter the Trinity Test Site crater on September 17, 1945 after a nuclear detonation. He was diagnosed with a

cell mutation as a result of radiation poisoning. He had more than 550

gamma globulin shots and about 27 surgeries to stay alive, yet the U.S.

Government unjustly would not compensate him for his illness. My office has been in contact with the Department of Energy, Department of

Justice and Labor Department. Why do these agencies refuse to compensate either Wilbur, and now his family, even though there is ample

evidence to show his illness was caused by working at the Trinity Test

Site?

Answer 4. The Department of Energy does not adjudicate compensation awards.

We understand from the Department of Labor that Mr. Dunlap was denied compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act due to a non-covered illness, but may be eligible for benefits under

Part E of EEOICPA.

We understand from the Department of Justice that they adjudicated Mr.

Dunlap’s claims pursuant to the Radiation Exposure Compensation Act, 42 U.S.C.

2210 note (2000). The Act provides compensation to an individual who participated

onsite in a test involving the atmospheric detonation of a nuclear device and subsequently developed a specified compensable disease. The medical evidence provided

in support of Mr. Dunlap’s claims indicate that he was diagnosed with a

demyelinating neuropathy with monoclonal gammapathy, which is not a covered illness under the Act. The Department of Justice has no discretion to add to the list

of specified compensable diseases. The inclusion of additional illnesses would require a legislative amendment to the statute.

The CHAIRMAN. Thank you.

Dr. Bouville.

STATEMENT OF ANDRE BOUVILLE, Ph.D., DIVISION OF

CANCER EPIDEMIOLOGY AND GENETICS, NATIONAL

CANCER INSTITUTE, NATIONAL INSTITUTES OF HEALTH,

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

Dr. BOUVILLE. Chairman Pombo and Chairman Leach, members

of the Committee on Resources and the International Relations

Subcommittee on Asia and the Pacific, thank you for the opportunity to testify on behalf of the National Cancer Institute of the

National Institutes of Health, an agency of the U.S. Department of

Health and Human Services. My testimony will describe the findings from October 2004 correspondence with the Senate Committee

20

on Energy and Natural Resources, and will describe some of the

scientific uncertainties associated with our findings.

I have submitted my full statement for the record.

Last summer, the Senate Committee on Energy and Natural Resources asked NCI for its expert opinion on the estimated numbers

of baseline concepts and radiation-related illnesses from nuclear

weapons testings in the Republic of the Marshall Islands. NCI provided the Senate Committee with the following estimates.

First, about 5,600 baseline cancer cases, that is, those which are

expected to occur in the absence of exposure to fallout, may develop

within the lifetime of the cohort alive during the test years from

1946 to 1958, with an estimated population sizes of about 14,000.

About half of those baseline cases have already occurred.

In addition, about 500 cancer cases may develop as a result of

exposure to fallout radiation. Hence, exposure to fallout could result in about a 9 percent increase in the total number of fatal and

non-fatal cancers expected.

We estimate the thyroid gland was the most heavily exposed

organ. Of the estimate additional 500 fallout related cancers, approximately 260 are expected to be thyroid cancer.

Finally, we expect that about 400 out of the estimated additional

500 excess cancer cases will occur in a 35 percent of the population

who were under 10-years-old when exposed to fallout.

It should be recognized that the estimated number of cancers expected are highly uncertain because first those estimates are uncertain, second, baseline cancer rates are approximately, and third,

organ-specific doses estimated for some atolls are so high that simple extrapolation based on the experience of other irradiated populations may not be appropriate. However, the doses were estimated

so as to avoid significant underestimation of the numbers of radiation-related cancers expected to occur.

I would like to bring to your attention some of the assumptions

and uncertainty that are factored into our estimates.

First, in the absence of baseline cancer rates for the Republic of

the Marshall Islands, the rates representative of native Hawaiians

were used as a surrogate.

Second, those models were developed in an unrefined fashion.

They are, however, based on our years of experience and understanding of radiation dosimetry and weapons fallout. We used a

simple data, all that was available to us, including monitoring data

from the 1950s.

And third, while nearly one-third of the excess radiation-related

cancers projected for the entire Marshall Islands could be attributed to cases on Rongelap and Ailinginae, we must emphasize that

because of the extremely high radiation doses received at those two

atolls, current risk projection models are likely to over predict incidence.

In summary, there are a large number of uncertainties associated with our estimates, only some of which could be reduced in

the framework of a comprehensive study. In the long run this

would require a large multi-disciplinary effort undertaken over several years at considerable cost. The decision whether to move forward with such a study must be made with the understanding that

the likelihood of reducing significantly the uncertainty regarding

21

the total number of excess cancers is quite small. The incremental

information thus gained would be of little practical significance in

terms of public health management in the Marshall Islands. The

NCI, therefore, does not believe that a comprehensive study should

be conducted.

In the short term, NCI plans to submit the dosimetry and epidemiologic methods used to obtain this set of estimates to peer-review for publication in the scientific literature. In this way, our

work can be verified, refined and employed by others who take an

interest in the welfare of the islanders.

I hope this information about the development of NCI’s estimate

for baseline cancer incidence and radiation-related cancer risks in

the population of the Marshall Islands has been helpful to you.

I would be pleased to answer your questions. Thank you.

[The prepared statement of Dr. Bouville follows:]

Statement of Andre ́ Bouville, Ph.D., Division of Cancer Epidemiology and

Genetics, National Cancer Institute, National Institutes of Health, U.S.

Department of Health and Human Services

Chairman Pombo and Chairman Leach, Members of the Committee on Resources

and the International Relations Subcommittee on Asia and the Pacific, thank you

for the opportunity to testify on behalf of the National Cancer Institute (NCI) of the

National Institutes of Health, an agency of the U.S. Department of Health and

Human Services. I am Andre ́ Bouville, Ph.D., lead radiation dosimetrist with the

NCI’s Division of Cancer Epidemiology and Genetics. My testimony will describe the

findings from NCI’s October 2004 correspondence with the Senate Committee on Energy and Natural Resources, discussed below, and will describe some of the scientific

uncertainties associated with our findings.

Last summer, Senators Domenici and Bingaman of New Mexico, the Chairman

and Ranking Minority Member of the Senate Committee on Energy and Natural Resources, asked NCI for ‘‘its expert opinion’’ on the estimated number of baseline cancers and radiation-related illnesses from nuclear weapons testing in the Republic of

the Marshall Islands. Our Division was tasked with developing this response because of our robust research program in radiation epidemiology, dose reconstruction,

and risk estimation.

We developed unrefined estimates of radiation doses and numbers of radiationinduced cancers, based on: (1) measurements of Iodine-131 (I-131) in the urine of

adults from two islands, Rongelap and Ailinginae, collected after the test BRAVO

in 1954; (2) measurements of the contents of Cesium-137 (Cs-137) and other radionuclides in the body of inhabitants of Rongelap and of Utrik who returned to their

atolls in 1954 and 1957; and (3) environmental measurement data on radionuclide

deposition provided for all atolls by the Marshall Islands-sponsored radiological survey completed in 1994. We combined these elements with a standard analytic approach to develop basic answers about cancer incidence. This is, to our knowledge,

the first time radiation doses and numbers of radiation-induced cancers have been

estimated in a systematic manner over the entirety of the territory of the Marshall

Islands.

The NCI Director, Dr. Andrew von Eschenbach, sent his reply to the Senate Energy and Natural Resources Committee with the following estimates:

• About 5600 baseline cancer cases (i.e., those which are expected to occur, in the

absence of exposure of fallout) may develop within the lifetime of the cohort

alive during the test years 1946-1957, with an estimated population size of

13,940. About half of those baseline cases, approximately 2800, have already occurred.

• In addition, about 500 cancers may develop as a result of exposure to fallout

radiation. Hence, exposure to fallout could result in about a 9 percent

increase—to about 6100—in the total number of fatal and nonfatal cancers

expected.

• We estimate that the thyroid gland was the most heavily exposed organ because

it is the target organ for radioactive iodine, a major component of fallout. Of

the estimated additional 500 fallout-related cancers, approximately 260 cases

are expected to be thyroid cancer.

22

1SEER: NCI’s Surveillance, Epidemiology and End Results Program (http://seer.cancer.gov/

about/) currently collects and publishes cancer incidence and survival data from 14 populationbased cancer registries, including the State of Hawaii, and three supplemental registries covering approximately 26 percent of the U.S. population.

• We expect that about 400 out of the estimated additional 500 radiation-related

cancer cases will occur in the 35 percent of the population who were under 10

years old when exposed to fallout. Since members of this age group are now between ages 50-60, almost all of those cancers are likely to have occurred by the

end of the next few decades. • Higher excess cancer rates are expected in the populations exposed to the highest doses that lived in the northern atolls.

Estimation of diseases other than cancer has not been made. Such work would

require expertise and data not readily available in NCI. To obtain the cancer risk figures I have presented, three calculations had to be made: we estimated doses, then baseline cancer rates, and derived radiation risks

from epidemiologic studies of various irradiated populations. It should be recognized

that the estimated numbers of cancers to be expected are highly uncertain, because:

(1) dose estimates are uncertain; (2) baseline cancer rates are approximate; and (3)

organ-specific doses estimated for some atolls are so high that simple extrapolations

based on the experiences of other irradiated populations, such as A-bomb survivors,

may not be appropriate. However, the doses were estimated so as to avoid significant under-estimation of the numbers of radiation-related cancers expected to occur.

I would like to bring to your attention the assumptions and uncertainties factored

into our estimates: • In the absence of registry-based baseline cancer rates for the Republic of the

Marshall Islands, the NCI Surveillance, Epidemiology and End Results

Program (SEER) 1 rates representative of native Hawaiians were used as a

surrogate. • Dose models were developed in an unrefined fashion. They are, however, based

on our years of experience and understanding of radiation dosimetry and weapons fallout. We used as input data all that were available to us, including monitoring data from the 1950s. • To present the best figures for this particular request, we made assumptions

that likely have led to over-estimates of the average doses received and of the

number of projected radiation-related cancers. For example, we assumed a

population size from the 1958 census, even though most of the exposure was

received years before when the population is believed to have been smaller.

Lifetime cancer risks from radiation exposure were then estimated using risk

projection models developed over many years at the NCI. • While nearly one-third of the excess radiation-related cancers projected for the

entire RMI could be attributed to cases on Rongelap and Ailinginae, we must

emphasize that, because of the extremely high radiation doses received at those

two atolls, current risk-projection models are likely to over-predict incidence.

Since lifetime risk is generally proportional to dose, the assessment of lifetime

risk for persons who received particularly high doses generates an estimate that

all such persons will develop a radiation-related disease. Since we cannot say

for certain that will be the case, the estimated numbers of radiation-related

cancers over the whole nation should be treated as an upper limit of cases.

As NCI wrote in its response to the Senate questions, there is a large library of published scientific literature and estimation tools, many of which we used to develop unrefined dose and risk estimates for the exposed populations. What NCI did

last summer was to perform the first dose-reconstruction for the entire Marshall

Islands from available exposure data, and then develop risk assessment from mathematical tools not refined until 2003. Nevertheless, there are a large number of uncertainties associated with our estimates, only some of which could be reduced in

the framework of a comprehensive study. In the long run, this would require a

large, multidisciplinary effort undertaken over several years at considerable cost.

The decision whether to move forward with such a study must be made with the

understanding that the likelihood of reducing significantly the uncertainty regarding the total number if excess cancers is quite small. The incremental information

thus gained would be of little practical significance in terms of public health management in the Marshall Islands. The NCI, therefore, does not believe that a comprehensive study should be conducted.

In the short term, NCI plans to submit the dosimetry and epidemiologic methods

used to obtain this set of estimates to peer-review for publication in the scientific

literature. In this way, our work can be verified, refined, and employed by others

who take an interest in the welfare of the Islanders.

23

I hope this information about the development of NCI’s estimates for baseline cancer incidence and radiation-related cancer risks in the population of the Marshall

Islands has been helpful to you. I would be pleased to answer your questions.

24

The CHAIRMAN. Thank you. I thank all of the members of the

panel for their testimony.

Mr. Krawitz, I would like to begin with you. Is it the position of

the Administration that any responsibility that we had to the RMI


Estimated number cancers in the RMI 

'vVithout fallout 

Hue to fallout 

Total 

Increase due to fallout 

\Vithmlt fallout 

nue to fallout 

Total 

Increase tim: to fallout 

1946-2003 

TirlH~ period 

2004+ 

THYROID CANCERS 

100 30 

I ()ij IlHI 

260 130 

i 60'1., 330% 

ALL CANCERS 

2740 2860 

240 290 

2980 3150 

9'Y" IO'~~J 

Table 3. Estimated excess (radiation related) cancers by atoll group and organ 

Rongelap, 

Ailinginae 

Population size' 82 

Utrik 

157 

Southern atolls 

Other Low 

northern exposure 

atolls** atolls*** 

2005 3834 

Very low 

exposure 

atolls**** 

7862 

'Estimated from 1958 census (except for evacuated populations) as described in text. 

*'Ailuk, Mejit, Likiep, Wotho, Wolje, Ujelang 

'*'Lae, Kwajalein, Maloelap, Namu, Arno, Mili 

""Lib, Aur, Ailinglaplap, Majuro, Ujae, Kill, Jaluit, Namorik, Ebon 

Ufetime 

130 

260 

390 

200% 

5600 

530 

6130 

9°;') 

Totals 

(number of baseline 

cancers in 

parentheses) 

13940 

tBased on linear-model estimates applied to doses far higher than those in other studied populations, and 

therefore the estimate of excess cases is likely to be a rough upper bound (see text). This caveat is less 

applicable to estimates for Utrik, and does not apply to the other atolls (see Table 1 for average doses by 

atoll). 

ttEstimated number of cancers exceeds number of exposed (see text) 
25

with relation to any needs was relinquished by the $150 million,

Section 177 Settlement, and are there any continuing needs that

can legally be addressed outside of what we are calling changed circumstances?

Mr. KRAWITZ. Mr. Chairman, I can’t actually answer the question

concerning needs that need to be addressed outside. I can answer

your question concerning the Administration’s feeling concerning

the settlement which was achieved in 1986.

My understanding, that the Section 177 of the Compact and the

Section 177 Settlement Agreement, which was incorporated into

the Compact, constituted a full settlement of all aspects of all

nuclear test-related claims involving the United States and the Republic of the Marshall Islands, and that both sides accepted that

at that—the settlement at that time when they brought the original Compact into effect.

On the renegotiation of the Compact just recently, the amended

Compact went into effect in 2004, there was no basis for addressing

that settlement agreement or that section, and in fact, that whole

language was incorporated into the new compact in total unchanged. I believe I’m correct on that.

When we brought the new compact into effect in May of 2004,

this was in fact a reaffirmation by both sides that the full settlement was in fact agreed upon by both sides and that there was no

change. Article IX does allow for the Republic of the Marshall

Islands to make a request. We agree with that, and there is a test

that’s built into there, the five conditions that I read in my probably too long testimony. But again, there are no guarantees. It is

the ability to make a request, and in order for this to be considered, they have to meet the test, and in our opinion, they did not

meet the criteria that were set forth.

We don’t take a position—I want to reiterate what I said in my

testimony, we were only asked—and I disagree slightly with the

distinguished Member’s statement that it’s the State Department’s

position. It’s the Administration’s position. We were asked on behalf of the Administration to oversee an evaluation of the request.

Our position is that the evaluation only of just that specific question of whether or not this request met those criteria as defined in

Article IX which allowed such a request to be made. We do not

take a position on whether or not there are other needs, whether

there should be other programs. This was not within the view of

what we were asked to do at that time. I hope that answers your

question, sir.

The CHAIRMAN. Yes, I believe it does, but just to reiterate what

you are saying, your testimony, the Administration position is only

in terms of this petition?

Mr. KRAWITZ. Yes, sir. To the best of my knowledge we were only

asked to look at this position and to coordinate with our colleagues

to do a response on the criteria that would either qualify or not

qualify, and that’s all we were concerned at in this specific case.

We addressed nothing else.

The CHAIRMAN. Thank you.

Mr. Cary, given the extensive environmental monitoring programs, it would appear that conditions in even the most directly affected four atolls are shown to be safe for habitation. For this reaVerDate 11-MAY-2000 13:32 Oct 24, 2005 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6602 J:\DOCS\21448.TXT HRESOUR1 PsN: HRESOUR1
26

son it would seem that the petition request for 2.3 billion for the

health care needs would not be similar to the needs of those in a

current DOE health program. Your testimony seems to assert that

citizens growing up in the RMI should no longer see the direct effects of the U.S. nuclear tests. Is this an accurate assessment of

your testimony?

Mr. CARY. Sir, my testimony is directed to the very narrow historic program of the Department of Energy, and our experience has

come from dealing with medical patients from Rongelap and Utrik,

which by general consensus were the most affected areas.

We have excellent history on those patients, have a good relationship with those patients, and we continue to serve them. But

it’s too difficult for me to extrapolate from that to other populations

in the Marshall Islands. We’ve had good success with our cohort

and it’s a very narrowly defined program which we’ve tried to pursue as effectively and economically as possible.

The CHAIRMAN. Thank you. My time is about expired.

I am going to recognize Chairman Leach for any questions he

has.

Mr. LEACH. I will be brief. I want to ask Dr. Bouville a question.

You are head of the Division of Cancer Epidemiology and Genetics.

How old is this division?

Dr. BOUVILLE. I’m not head of the division, I’m sorry, but I’m the

lead dosimetrist in that division. I think the division is about 20-

years-old.

Mr. LEACH. The reason I raise it is in this circumstance I think

the Department of State—and I want to make it the Department

of State, not just the Administration—has a credible position that

is legal. But the idea of nuclear testing is 60-years-old. It was 1945

that the first atomic bomb went off. And you are in a division that

is all about modern things, genetics, epidemiology of cancer, that

didn’t exist even 30 or 40 years ago. And so when we are looking

at issues of this nature it strikes me that one can speak with some

definitiveness about legality, but it is pretty hard to speak with definitiveness about health consequences, about something that is so

new to human existence. It is one of the reasons why I think America should have a bit of an open mind on these kinds of issues, because we don’t know lots of things. And we do know in this instance that we are responsible. So we have kind of the known of

responsibility, the unknown of consequence, and I think we have

to keep an open mind, and I just raise it in that regard.

Now, as a doctor, does that seem like an unreasonable thing?

Your colleague has suggested they have a bit of a track record with

some American analog situations, which presents some basis for a

health care assessment. But isn’t it fair to say that there are things

here we just don’t completely comprehend?

Dr. BOUVILLE. Well, of course, of course I must agree with you.

Mr. LEACH. Thank you very much.

The CHAIRMAN. Mr. Faleomavaega.

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. As a follow up

to Chairman Leach’s question and expressing similar concern, Dr.

Bouville, you said that the estimates are somewhat—as I quote

from you—‘‘highly uncertain.’’ I think I hear a quote also that the

27

total population of the Marshalls at the time was about 14,000 people.

Mr. Chairman, I would like to ask unanimous consent. I am

sorry, I don’t have in my possession a document that was recently

declassified, indicating that the entire archipelago of the Marshall

Islands were severely exposed to nuclear radiation, not just the

northern part of the Marshalls where Rongelap and Utrik and Bikini, the entire Marshall Islands group was severely exposed. It

has the contents of this military report that I saw.

And I would like to ask Dr. Bouville, what is the usual that a

human can take as far as radiation, how many rems? I am not a

scientist so I can’t put it in better terms.

Dr. BOUVILLE. The average effective dose received for natural

background radiation all over the world is estimated to be about

2 millisevert per year.

Mr. FALEOMAVAEGA. I am sorry?

Dr. BOUVILLE. It’s about 2 millisevert per year.

Mr. FALEOMAVAEGA. Two milli?

Dr. BOUVILLE. Dose of the United Nations figures on average for

the entire world population. Now, if you refer to the Republic of the

Marshall Islands, I guess some of the exposures will not be as high,

again, as due to natural background radiation, meaning cosmic

rays from the sky, and uranium, natural uranium and thorium in

the ground. My own estimation would be that the average background radiation would be about 1 millisevert per year in the Republic of Marshall Islands.

Mr. FALEOMAVAEGA. As I recall in reading it, I don’t know

whether you call them rems—it was several hundreds, in the thousands even among some of the islands. And here again I am expressing a layman’s point of view because I don’t have the document, but I will send it to you personally so you can see it for yourself.

Secretary Krawitz, you indicated five criteria the State Department has given to consider what is a substantial change under the

provisions of the Compact. Was this something done by the State

Department or was this by mutual agreement with the Marshall

Islands?

Mr. KRAWITZ. No, sir. This is taken directly from the Compact.

The 1986 Compact of Free Association is actually incorporated—I’m

not a lawyer—in Article IX of Section 177 of the agreement, so this

is actually public law, as far as I understand.

Mr. FALEOMAVAEGA. I notice you have also quoted several hundred millions of dollars that have gone extensively for the Marshall

Islands for their benefit, but I just fail to see how this fact that you

equate millions of dollars to the lives of these people, who were exposed severely to nuclear radiation. It is not a very good experience

when you meet with five women who have had to have five operations as a result of thyroid cancer. Some of these women could

hardly speak to me when I talked to them, and that is just a real

small little sample of the seriousness of this situation, and I really

would respectfully request that the State Department show a little

sense of conscience in terms of what we are trying to do here.

These people had no idea what we were going to do to them. We

have experimented with pigs, with sheep, with cows and all of this,

28

and then also people themselves. I think we have a moral obligation to do what we can to help these people, and I just honestly

believe in my honest opinion, Secretary Krawitz, we are not doing

enough.

Mr. KRAWITZ. With all respect, sir, I am not equating dollars

with lives or with people. We were asked whether or not the U.S.

Government has taken any steps to try to alleviate some of the suffering and damage, and the Administration’s position is that we

have in fact tried to do things through programs. It’s very difficult

to measure programs in ways that are understandable to all, but

one way that most people do understand is how much—how many

resources do you put into a program.

The numbers that I took are from the appendices of the report

that we have submitted, the Administration’s report to Congress

evaluating the request——

Mr. FALEOMAVAEGA. Secretary Krawitz, my time is limited. I just

want to put it this way. It is very easy to equate, when you mention all these hundreds of millions of dollars, and when Dr.

Bouville comes up and says it is highly uncertain numbers that we

are dealing with, it seems to me a total contradiction here in terms

of what—are we really helping these people? And I submit I don’t

think we are doing enough to provide the kind of help that they

have been asking for all these years.

My time is up, Mr. Chairman. Thank you.

The CHAIRMAN. Further questions? Mr. Gilchrest.

Mr. GILCHREST. Thank you, Mr. Chairman.

I guess this would be to the medical doctor/researcher, or actually any one of the panelists. Are there any areas of the Marshall

Islands today still uninhabitable as a result of the testing? Radioactivity in the soil, things like that, any area of the Marshall

Islands that cannot be inhabited?

Mr. CARY. As part of the initial Compact, agreements were made

that circumstances would have to be taken so that resettlement

could take place. The best example is Rongelap atoll, where we in

the Department of Energy have been working with Lawrence

Livermore National Laboratory to assist their resettlement efforts.

Mr. GILCHREST. Are the resettlement efforts ongoing now?

Mr. CARY. Yes, sir.

Mr. GILCHREST. Are the resettlement efforts based on—I guess

the question is, is there any area of the Marshall Islands where

you would not want resettlement because there is radioactivity still

in the soil?

Mr. CARY. Yes, sir, there is. And let me—if I may explain a little

further what we’re doing at Rongelap. Our goal is not to meet a

certain guideline or standard, but to have radiation levels as low

as reasonably possible.

Mr. GILCHREST. Can you do anything to remediate the radiation

or is it just naturally degrading?

Mr. CARY. It’s naturally degrading, the cesium there is, but what

we’re doing in the areas, the residential areas where they’re planning to move in, we’re taking out a foot—and most of this has been

done already—a foot of the soil has been taken out and crushed

coral’s been brought in. These are residences——

Mr. GILCHREST. Crushed coral?

29

Mr. CARY. Crushed coral, yeah.

Mr. GILCHREST. From coral reefs?

Mr. CARY. Yeah. Well, this is all a coral reef. The Marshall

Islands, there’s plenty of it there, sir.

Mr. GILCHREST. OK.

Mr. CARY. And so——

Mr. GILCHREST. Have the hearing on coral reefs.

[Laughter.]

Mr. GILCHREST. Thank you. I appreciate what you are attempting to do and I don’t mean to cut you off, but I have a series of

questions.

Is anyone alive today in the Marshall Islands that is being treated for a disease that can be connected to the testing?

Mr. CARY. Well, by congressional mandate, sir, there are 253 individuals on Rongelap and Utrik that we’ve been treating since

they were subjected to fallout.

Mr. GILCHREST. So there are 251 people today——

Mr. CARY. 253.

Mr. GILCHREST. 253.

Mr. CARY. Of the original cohort. That group is now under 200

individuals. We do annual medical exams on these individuals. We

have clinics in Majuro and in Kwajalein, and folks are brought to

the Straub Clinic in Hawaii for treatment or surgery if they need

it.

Mr. GILCHREST. I see. Do you have a number of people—I didn’t

see it on the list here—that have actually died as a result of the

fallout, because of the testing?

Mr. CARY. I’ll have to submit that information to you for the

record.

Mr. GILCHREST. OK. Is there any reason that we continued the

testing from ’46 to ’58, I think you said, knowing the problems that

humans would have with exposure to radiation?

Mr. CARY. The Department of Defense made a series of decisions.

Mr. GILCHREST. We were teenagers back then so we didn’t make

those decisions. But I am just curious looking back now. I remember when I was, I don’t know, early 20s or something when the

Chinese set off their first nuclear weapon and they said it was affecting cows where I lived. So whether that is true or not, I don’t

know. We didn’t get really upset about that.

Mr. FALEOMAVAEGA. Would the gentleman yield?

Mr. GILCHREST. Sure.

Mr. FALEOMAVAEGA. I want to say it is my understanding the

reason why we changed the place to conduct our nuclear testing

program, because of the carryover of these nuclear clouds that we

produce from the Marshall Islands, it went all the way to Minnesota and Wisconsin and they found Strontium-90 in milk products from these two States. So we decided to go somewhere else,

and it was Nevada.

Mr. GILCHREST. Underground.

Mr. FALEOMAVAEGA. That was the reason why we had to leave

the Marshall Islands.

Mr. GILCHREST. So we tested from ’46 to ’58. Was there some

sense or some understanding that—the doctor said that there was

an increase—I think I got this right—there was some suspected

30

increase in cancer as a result of the fallout would be 9 percent over

the natural rate of cancer. Was that information that you just gave

us probably known in the 1950s?

Mr. CARY. No, sir.

Mr. GILCHREST. I see. So there are some areas left contaminated

with radioactivity, if I could use that word, that is ongoing mitigation. There are some people that are still continuing to receive

medical treatment as a result of the ongoing—well, the problem

with the fallout. I guess they are my age or older I would suspect.

Mr. CARY. That’s right, sir. We’re doing environmental monitoring on four atolls, Bikini, Enewetak, Rongelap and Utrik, and

we’re doing medical monitoring and treatment for folks from

Rongelap and Utrik atolls.

Mr. GILCHREST. I see. Thank you very much, Mr. Chairman.

The CHAIRMAN. Further questions? Mr. Kildee.

Mr. KILDEE. 29 years ago, when I think Mr. Leach and I arrived

in Congress, Phil Burton told me that we could judge the greatness

of a Nation on how it related to those who are less wealthy and

less powerful. And with the Republic of the Marshall Islands we

even have a stronger connection because of the great responsibility

we have because of the damage we inflicted upon those people. I

just want to say this, that I associate myself entirely with the position of Mr. Faleomavaega, and my voting pattern will follows his

example. He has been one who has guided me well politically and

morally, and Eni, I will be following you.

Thank you very much, Mr. Chairman.

The CHAIRMAN. Further questions? Mr. Fortuno.

Mr. FORTUNO. Thank you, Mr. Chairman.

There are some questions for Dr. Bouville. Are there any indications of any other diseases as a result of exposure to the nuclear

testing? I understand in your statement you mentioned that no estimations have been made. Are there any preliminary indications

at all of any other type of diseases as a result of the nuclear testing?

Dr. BOUVILLE. I’m afraid that we’ll have to consult with other

members of the NCI team about this since that’s not my field at

all. But I would be happy to provide a response for the record.

Mr. FORTUNO. What would it take to assess whether there are

other diseases as a result—other than cancer, as a result of the

testing? What type of testing would you say would it take, or is

there a Phase I, Phase II on the environmental side that you would

conduct?

Dr. BOUVILLE. Well, up to about five years ago, it was assumed

that radiation could only cause cancer, and the non-cancer effects

are relatively new. And as far as I know they are not as frequent

as the cancer effects, and this is why I would rather defer to my

colleagues to answer that question. Personally, I believe it to be

very difficult to detect an increase of non-cancer effects, but I will

provide you an official response for the record.

Mr. FORTUNO. Thank you. Could you very briefly go over what

other non-cancer medical effects are we now finding out about recently?

Dr. BOUVILLE. Well, you will find most of this information in the

statement I submitted for the record. But basically most of the exVerDate 11-MAY-2000 13:32 Oct 24, 2005 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6602 J:\DOCS\21448.TXT HRESOUR1 PsN: HRESOUR1
31

cess in cancer that we expect are for thyroid and colon because we

estimate that most of the exposure was due to ingestion of foodstuffs.

Mr. FORTUNO. Any genetic defects that will be passed down to

other generations that you would think?

Dr. BOUVILLE. Again, the consensus among researchers is that

this is really a second-order effect if it exists. There are detailed

studies going on among the A-bomb survivors to detect the number

of genetic effects among the population that were exposed due to

the tests at the Hiroshima and Nagasaki. That will be clearly a

second order effect, but again, I would be happy to provide a response for the record.

Mr. FORTUNO. Thank you very much, doctor.

Thank you, Mr. Chairman.

The CHAIRMAN. Further questions? Mr. Abercrombie?

Mr. ABERCROMBIE. Thank you very much, Mr. Chairman. Mr.

Chairman, I want to state to our friends here, we are not trying

to make you villains in this piece here, but there are serious questions to be answered that you can only answer from an institutional basis, and that is the direction of my questions.

Mr. Chairman, I have a further bias here I feel I should say because I feel very strongly about this issue because I am probably

one of the few people who has actually seen an atomic test in the

Pacific because I got to witness it from Hawaii in the atmosphere

in 1962, hundreds of miles away, when the sky lit up, when the—

I don’t know if Eni was out there at that time, but let me tell you,

it shocked me. We had no idea, even though we had been told there

was going to be a test, nobody had any idea that it would actually

be able to be seen in Hawaii. And as I say, the sky lit up in this

very strange strawberry color.

And I, in a certain sense, vowed to myself then, and one of the

things that propelled me into politics was the idea of dealing with

nonproliferation and trying to end testing and so on, because it occurred to me that if we could see it we probably were going to be

able to have the results of it float through the air to us as well

even though we were hundreds of miles away.

Having said that, I need to ask two or three questions that I

think will establish why we do have an obligation, a legal obligation to deal with changed circumstances. Whether it amounts to

the same thing as what the Marshall Islands requested of us, Mr.

Chairman, is up to you and the committee members to make a decision. But I do think that the basis for changed circumstances

exists.

Dr. Bouville, if I read correctly on page 4 of your testimony, the

baseline figures that you are giving to us, it says, ‘‘In the absence

of registry-based baseline cancer rates for the Republic of the Marshall Islands, the NCI Surveillance, Epidemiology and End Results

Program’’, commonly known as SEER, ‘‘rates representative of native Hawaiians were used as a surrogate.’’

So you have never actually really measured even the quarter of

the population that is mentioned, I believe, in the State Department report, you never measured the 56,000 people over and above

what has been done by Dr. Cary and the Health section of the DeVerDate 11-MAY-2000 13:32 Oct 24, 2005 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6602 J:\DOCS\21448.TXT HRESOUR1 PsN: HRESOUR1
32

partment of Energy. You are using the native Hawaiian cancer rate

as a surrogate for all of this, right?

Dr. BOUVILLE. That’s correct.

Mr. ABERCROMBIE. See, I mean, this is—we can’t do this. And

that takes me to the State Department. Did the State Department

take into account that there has never actually been a measurement in the Marshall Islands of what happened with the testing

that went on for a number of years and that we are using for just

the cancer rate alone, the baseline cancer rate, that which exists

for native Hawaiians?

Mr. KRAWITZ. No, sir, because the State Department was only

asked to compile, to put together—well, but this is——

Mr. ABERCROMBIE. I understand.

Mr. KRAWITZ. This is part of the problem. We are not a scientific

institution, nor do we run programs.

Mr. ABERCROMBIE. No, no, I understand. I am asking you in the

context of the five criteria did you take into account when trying

to determine whether or not all the articles had been met for legal

purposes under the State Department that there had been no adequate measurement of the Marshall Islands, of the population of

the Marshall Islands either in part or in whole?

Mr. KRAWITZ. I can’t answer that question, sir.

Mr. ABERCROMBIE. OK. Then the last thing, it is true, is it not,

Dr. Cary—I am saying Dr. Cary, excuse me. I am not sure whether

I have said that correctly. It is Mr. Secretary. Yes. Mr. Secretary,

I beg your pardon, I misread this.

But Mr. Secretary, the narrow focus that you spoke of refers to,

does it not, the program that the DOE has essentially with Bikini,

Enewetak, Rongelap and Utrik, right?

Mr. CARY. Yes, sir.

Mr. ABERCROMBIE. And that constitutes less than 200 individuals. I believe your statement says 194 individuals at this time. In

effect, if I draw a parallel to the Hansen’s Disease Program in Hawaii now, these folks represent the remnants of that original concentration of the DOE Health Department section over these past

years, correct?

Mr. CARY. Yes, sir.

Mr. ABERCROMBIE. So in a certain sense you can’t speak authoritatively to the question that I asked Dr. Bouville in the beginning

about whether or not a comprehensive survey had been made, even

to this day, as to the effect of radiation over the 50 plus thousand

people in the Marshalls?

Mr. CARY. That’s correct, sir.

Mr. ABERCROMBIE. Thank you.

Mr. Chairman, I believe that every member of the panel has

given testimony with respect to their particular section of responsibility that they have, and I think they have spoken

straightforwardly and truthfully. Unfortunately, I don’t think that

it addresses the question that we have to answer legislatively

speaking with regard to whether changed circumstances exist.

My proposition would be for the Committee to take under consideration is, is that the changed circumstances are that the Compact

as written, and written in good faith and passed in good faith,

really doesn’t take into account the questions raised in the changed

33

circumstances petition, and that absent our ability to answer those

questions, we need to take into account whether in fact changed

circumstances do exist. Namely we have to have a much more comprehensive understanding of what the radiation fallout did and

what the consequences are today, and then what our obligations

are legislatively as a result.

Thank you.

The CHAIRMAN. Thank you.

Further questions? Mr. Flake.

Mr. FLAKE. Thank you, Mr. Chairman.

The 200 or so that are still living that were directly affected,

where are they living now? Are they on Ebon or are they on the

affected islands?

Mr. CARY. They’re on a number of islands or atolls in the Marshall Islands. Some have relocated to Hawaii. Some are in the continental U.S.

Mr. FLAKE. With regard to the request, the summary here, Section 177 has to do with the Compact of Free Association, it doesn’t

have to do with the claim issue, but it is included here within. Why

is that? That is a creature, the Compact of Free Association, that

is a different process, yet it is included with these other issues.

Does that make sense? I am sorry.

Mr. CARY. The 177 program is not the DOE program, sir.

Mr. FLAKE. But all these are included here one after the other.

Can somebody speak as to why 177, the 45 million a year for 50

years, is included with the others; is that not a separate issue?

Mr. KRAWITZ. If I understand you correctly, your question, sir,

the 177 is mentioned because under the compact that we negotiated in 1968—1986, the original Compact of Free Association, this

was one of the issues that came up for negotiation, the question of

the nuclear legacy and the problems and the health issues and

that—and this actually is part of the compact, part of the public

law that Congress passed as law. And the Article IX within the 177

section allows the Government of the Marshall Islands, Republic of

the Marshall Islands, to ask the Congress to consider if they—it allows them to present to Congress a case that there are changed circumstances which would allow for additional compensation. That’s

the reason, if I understand, why 177 is mentioned and Article IX

is mentioned.

Mr. FLAKE. OK.

Mr. KRAWITZ. Some of these programs come under this. Some

programs that I mentioned are part of the health programs and

education programs of the compact and some are specially mandated programs which the Congress set up for the Department of

Energy and others.

Mr. FLAKE. If the request for changed circumstances, if nothing

is granted or nothing changes, still the 177 with the 45 million for

50 years continues on.

Mr. KRAWITZ. No, sir. 177, there was a separate—there was a

settlement agreement under Section 177 which was—and again I’m

referring back to the law—is a full settlement of all claims, et

cetera. At that time $150 million was established to set up a

Nuclear Claims Fund and Section 177 made provision for a Nuclear

Claims Tribunal. The tribunal was given full responsibility to work

34

with the Government of the Marshall Islands. The United States

did not participate. We were not part of the awards or decisions

process, and there were some other monies and all—I’m not an expert on all this—but there were some other monies and programs

that were figured in as part of the settlement. This was in addition

to the compact provisions under Title 2 that were providing economic assistance for education and health and other things.

Mr. FLAKE. Thank you.

The CHAIRMAN. Ms. Bordallo.

Ms. BORDALLO. Thank you very much, Mr. Chairman.

My question goes to Secretary Krawitz. Mr. Secretary, I have a

question for you. Given the conclusive nature of the Administration’s response to the petition, it is challenging to ascertain under

what circumstances or conditions the Administration might recognize or concur with as having truly changed. With your testimony

today earlier, it appears that the Administration, under very limited circumstances, would accept these circumstances as having

changed since the Section 177 Agreement was formulated. Is this

a fair characterization of the Administration’s position and response to the changed circumstances petition? Can you, for example, please explain to the Committee the thresholds that must be

met in order for the Administration to recognize the circumstances

as having changed since 1986? What key tangible evidence must

materialize before you accept the relevancy of the Article IX provision?

Mr. KRAWITZ. I apologize at the onset for my answer, ma’am, because I can’t answer that question. We, the State Department will

not be able to give you an answer on what constitutes a changed

circumstance and what doesn’t. The whole concept, as I understand

it, is that the interagency process, all the expert and technical

agencies would look at all the facets of the petition as it’s presented

or the request as it’s presented, and they would make a determination. Again I have to reiterate the State Department is a policy

organ. We don’t run programs and we don’t have funding and we

don’t have monies. We were asked on behalf of the whole, you

know, administration, to put together—my understanding of the

process was that the Congress asked the President to do an evaluation. The President sent it to OMB. OMB sent it to us and asked

us to pull together this process.

The actual work that was done, the State Department did not do.

We do not have the scientific or technical expertise or the medical

expertise to be able to do these studies. So in effect what we were

were the final editors and compilers of this interagency process. We

put it into the final form and we sent it forward to the Congress

as requested.

So I cannot give you an answer on what constitutes acceptable

thresholds or meeting conditions or any of that sort of thing. That’s

a very technical area.

Ms. BORDALLO. So in other words you don’t have any data.

Mr. KRAWITZ. No, ma’am.

Ms. BORDALLO. Do you work at all with the other agencies that

are witnesses here today, health agencies and——

35

Mr. KRAWITZ. Other agencies would probably gladly give us data

but we couldn’t interpret it. See, my point is that it’s—the State

Department did not make a decision. It’s an interagency process.

Ms. BORDALLO. I understand that, I understand that. But it

seems to me that, you know, agencies can work together, and you

should come up with some answers here before the committee. This

is why we’re here.

Mr. KRAWITZ. Well, the question—it depends—the question at

hand is a technical question and we’re not qualified—at least to my

experience we’re not qualified to do this. I mean if you were to ask

us from a policy perspective something about—if there had been a

policy perspective in the petition, perhaps we would have been able

to do this. But it’s not. It’s a question of radioactive—the after effects of nuclear testing, health issues, medical care and—of course

we see the data that our colleagues from the other agencies give

us, but quite frankly, we are merely purveyors of information. We

do not interpret them.

Ms. BORDALLO. Thank you very much.

Mr. Chairman, I would like to associate myself with Chairman

Leach and his comments earlier. I support the RMI in their quest

to reexamine the adequacy of the Section 177 Agreement given the

scientific advancements that have been made over the past 20

years. I think this is only a fair conclusion, and I just want to go

on record as stating that. Thank you.

The CHAIRMAN. Thank you.

Further questions? Mr. Rohrabacher?

Mr. ROHRABACHER. I am sorry I was a little bit late. This might

be a bit redundant, but when we hear all this talk about an interagency process making decisions, I mean this is pretty frightening

when you think that people’s future and their lives are in the

hands of something as nebulous and undefinable as you just presented your case.

Mr. Secretary, let me ask you this, how important were the

nuclear weapons and other weapons that were developed in the

Marshall Islands to American security during the 1950s and ’60s?

Where would you place the impact?

Mr. KRAWITZ. I can’t even start to answer that question, sir.

Mr. ROHRABACHER. You can’t?

Mr. KRAWITZ. No, I cannot.

Mr. ROHRABACHER. It seems to me that even a civilian would be

able to answer that question, that the weapons that were tested

there were vitally important to America’s national security and

that these tests were thought to be something that without them

America would have been a less safe place, the world might have

been drawn into a war had we not developed some of the weapons.

Isn’t that correct?

Mr. KRAWITZ. That may be, sir. If you ask me as an individual

and a person who did serve in the military, I might be able to give

you an answer. But unfortunately, my position today is to speak

only to this specific topic and I can’t give you an answer.

Mr. ROHRABACHER. That is why some of us don’t trust interagency processes.

[Laughter.]

Mr. KRAWITZ. That might be.

36

Mr. ROHRABACHER. Let me as you then, in terms of the sacrifice

that people made over the years to make sure our country was

safe, could you make a comparison between the price that was paid

by the people of the Marshall Islands in terms of providing these

weapons testing and thus the national security we derived from

these weapons, as compared to the price that the average typical

American paid for the development of these weapons? Would you

say they paid a much higher price or about the same or didn’t pay

much price at all for it?

Mr. KRAWITZ. If I might, sir, let me answer your question from

a different perspective. I don’t want to compare prices and sacrifices that people made. We do—I think my testimony makes it

clear we do greatly appreciate the friendship and the support of the

people of the Marshall Islands. We have all the way through, way

back from our earliest—I mentioned that it’s a longstanding and

unique friendship. It’s a unique relationship. I will go a little bit

outside of my mandate to say even today citizens of the Republic

of the Marshall Islands serve in the U.S. military, the armed

forces. They serve with distinction in Afghanistan and in Iraq.

There’s no question that we think that we—as I said in my statement, that we remain committed. We know that the test did exact

a toll. We have tried—the Hon. Mr. Faleomavaega asked me about

dollar values. I am not equating dollar values with life, but when

you try to explain how much did you do in terms of dollar values

they represent medical programs, they represent medical facilities,

they represent attempts to do the right thing. Yes, they’re not the

same thing. But——

Mr. ROHRABACHER. I guess what I am trying to get at is perhaps

we are talking about more than friendship here. I mean you can

have a friend who you don’t owe a great debt to, who didn’t do a

tremendous service for your family or whatever. And in this case

we have friends, yes, the Marshall Islands, we have friends all over

the world. But we have people who paid a tremendous price, from

what I can see, compared to what typical Americans paid, to do

something that was of ultimate importance to our national security

back in the 1950s and ’60s. And so I would just suggest that when

we’re talking about, you know, making these indeterminate decisions, how do we determine this and that—and I know you are expressing what is somewhat nebulous within the law—but it would

seem to me that it would require us to bend over backwards for

people who paid a higher price for something that was so important. Wouldn’t you say that?

Mr. FALEOMAVAEGA. Would the gentleman yield?

Mr. ROHRABACHER. Let him answer the question, then I will be

happy to yield to my good friend.

Mr. KRAWITZ. I am going to check with my lawyers, but I believe

there’s a provision in the law which allows the Congress—I believe

it’s Section 103—to make ex gratia payments or compensation. I

would say that whereas I can’t speak to that, my task was to speak

specifically toward a review of this specific request. It was not to

go farther about whether sacrifices were made or who deserves

what. I do feel comfortable in saying that I do believe there is provision in the law for the Congress to act if it deems fit to——

37

Mr. ROHRABACHER. Let me just note before I yield to my friend,

Mr. Faleomavaega, that some of us would feel a lot better if you

were able to express that and the Administration was able to express that in a little more sensitive way.

Mr. Faleomavaega.

Mr. FALEOMAVAEGA. I thank my good friend for yielding, and certainly appreciate his concerns about the issues that we are discussing this afternoon.

In terms of, if I were to make a comparative—if my colleague

may not be aware, the first testing of our hydrogen bomb was in

the Marshall Islands. It was known as the ‘‘BRAVO’’ test. And the

figurings on that, when we exploded the BRAVO test or the hydrogen bomb, the first hydrogen bomb, it was 15 megatons, which is

equivalent to 1,000 times more powerful than the atomic bombs we

dropped in Hiroshima and Nagasaki. So if you want to talk about

sacrifice—and incidentally too, Mr. Chairman, and my good friend,

the winds had shifted right in the direction where these people in

Rongelap and Utrik were living, but our Government went ahead

and made a decision to go ahead and explode the bomb. And as a

result of that, this is why these people were exposed severely.

When I say severely, I have here the document in millirems,

202,000 millirems in the island of Rongelap, and in Utrik it was

some 24,000 millirems. Millirems, a normal human being can take

about 100 millirems. Now can you imagine 202,000 millirems that

these people had to take as a result of the explosion that we did,

the BRAVO test that we did in the Marshalls, and there were several others. The Soviet Union exploded a 50-megaton hydrogen

bomb in Kazakhstan. So in terms about the rivalry and in terms

of the Cold War and what we were trying to do on behalf of freedom-loving people, I submit, I think our good people of the Marshall Islands literally made a tremendous sacrifice on our behalf.

I thank the gentleman for yielding.

The CHAIRMAN. The Gentleman’s time expired. I recognize Mrs.

Christensen.

Mrs. CHRISTENSEN. Thank you.

I want to ask some questions to Mr. Krawitz. And this really is

a question directly to the report. In the Administration’s report on

the RMI, a petition recognized that some RMI requests might be

desirable and tacitly recommended that the programs for occupational safety, nuclear stewardship and nuclear education could receive further consideration for a sector grant if it was included in

the RMI’s budget. Is the Administration willing to consider grant

funding for these activities as requested by RMI in the petition?

Mr. KRAWITZ. I can’t, again, the State Department doesn’t have

funds. This would be the Department of the Interior who does all

sector grants. I do sit on what’s called the Joint Economic Management Committee, the JEMCO. That again is the Health and

Human Services, the State Department and——

Mrs. CHRISTENSEN. But you would support their request?

Mr. KRAWITZ. Things like that we believe—again, I hate to sound

like a broken record. This addresses, what I’m speaking about

today addresses only specifically the very narrow question of this

specific request. It does not talk about our overall relationship

or——

38

Mrs. CHRISTENSEN. Right. But since it seemed to have been suggested in the report itself, I am just trying to ascertain that you

would support those requests.

Mr. KRAWITZ. I think, yes, ma’am, I believe I personally would

support something like that. I do sit on that committee. I think

that is a reasonable approach. I think that other methods—we’re

not arguing that maybe nothing should be done. We’re just saying

that the approach that we’re taking here is not something that we

can support based on what was presented.

Mrs. CHRISTENSEN. OK, thank you. Another question again to

you, Mr. Krawitz, prior to Congress taking action on Compact II,

there were a series of negotiation sessions outlining the continuing

and future relationship between the U.S. and RMI. During this period was it the position of the U.S. that nuclear-related issues fell

outside of the scope of Compact II negotiations and that such

issues would eventually be addressed within the context of the

Changed Circumstances Petition? Is that the understanding?

Mr. KRAWITZ. My understanding—and I was part of some of the

latter negotiations—is that this was considered to be a full settlement that was consummated under the original compact. It’s incorporated in it. That’s why the 177 was incorporated into the amended compacts in its entirety, was not addressed because it was not

considered an open issue.

Mrs. CHRISTENSEN. So you are saying that the nuclear related

issues were considered to fall inside the scope of Compact II?

Mr. KRAWITZ. No, ma’am. 177 handled those, but that was carried in toto, in entirety into—it’s part of—not Compact II—we

should call them the amended compacts. The compacts actually

continue to exist. This is an amended compact that we put into

force in 2004.

Mrs. CHRISTENSEN. My follow-up question would be around

whether the funding provided to RMI under Compact II, which

were for non-nuclear related issues, if I understand, that there was

a separate section for the nuclear issues. The question was did nuclear-related issues fall inside or outside of the scope of Compact

II negotiations?

Mr. KRAWITZ. Outside, I believe.

Mrs. CHRISTENSEN. Outside, outside. So then is it fair for the Administration’s report to suggest that funding provided to the RMI

under Compact II, which are for non-nuclear-related issues, that

they be used for nuclear-related issues, because that is what the

report seems to suggest?

Mr. KRAWITZ. I’m not trying to be evasive, but it’s a difficult

question. In the sense that since the petition talks about health

care for the whole country you could look at it that way because

under the second compact, under the amended compacts we have

what we call sector grants. One of the top priority grants is health

care. Education is another one. So to the extent that you’re talking

about health care to be made available for all members of the population, yes, I guess you could argue that Compact II addresses—I

shouldn’t say Compact II—the amended compacts address that because health care grants are available, but they’re not specifically,

you know, nuclear related. They are health care period, the general

health and well-being of the population, and they were not deVerDate 11-MAY-2000 13:32 Oct 24, 2005 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6602 J:\DOCS\21448.TXT HRESOUR1 PsN: HRESOUR1
39

signed to address nuclear-related issues, although I guess if it

turns out in practicality that they touch on that, that’s just part

of general public health programs I would think.

Mrs. CHRISTENSEN. I have a question for Assistant Secretary,

Deputy Assistant Secretary Cary. Although some documents related to our nuclear testing programs in the Marshall Islands were

declassified in the mid ’90s, DOE has yet to declassify all of the

documents related to the program, as I understand it. Your testimony mentions that the Lawrence Livermore was able to review

classified material and issue a report to assuage RMI concern

about a specific neurotoxin. Has the Department of Energy or any

other authorized entity conducted a thorough review of all remaining classified material related to nuclear testing in the Marshall

Islands? And could you discuss the policy on how any future review

could begin on that remaining classified material, keeping in mind

national security concerns, but also providing the RMI with a

greater sense of the degree of contamination?

Mr. CARY. Several years ago, discussions in this area were initiated with the RMI during our annual meetings and with the atoll

leaderships as well. We were instrumental in getting many of these

declassified documents made public. That’s a continuing commitment from the Department of Energy. We continue to work with

the RMI and the atoll leadership in that area.

Mrs. CHRISTENSEN. Thank you, Mr. Chairman. I see that my

time is up, but I associate myself with the remarks of my colleagues. I feel that the RMI petition needs to be given more favorable consideration, and I’m not sure that all of the issues that need

to be addressed, the effects of the testing are being addressed to

the extent that they need to be.

The CHAIRMAN. Further questions? Ms. Watson.

Ms. WATSON. Thank you so much, Mr. Chairman, and I am sorry

I was late. I hope that my statement and question were not already

covered, but I am going to raise them anyway.

My colleague, Congressman Faleomavaega and I, in 2001, went

to the Marshall Islands and attended a number of public hearings

at which time residents of the Marshall Islands testified as to their

medical problems related to the nuclear testing in the region, particularly BRAVO. And it was—I was profoundly moved by the longterm suffering of the people of the Marshall Islands because of our

nuclear testing there for over two decades, and it included 67 atmospheric nuclear weapons tests on the Marshall Islands atoll, Bikini and Enewetak and so on. And number one, my concern was

why would we pick these idyllic islands to experiment with our

atomic bombs?

And some of the islands, as we flew over in a small plane with

the Ambassador, were completely blown off the map. Many of the

islands had lost their topsoil and some of the soil was still hot. The

people that testified in front of the committees where we attended

are talking about the generational effect. These were seniors who

were talking about the effects of the nuclear fallout, not only on

their children but their children’s children, because as we understood, the nuclear waste went into the ocean and went into, I

guess, the ocean floor and then into the fish and other parts of that

environment. And so we were very compelled by their request.

40

Now, my question to you is, with the rejection of the RMI’s claim

to increase the amount of money, can you explain upon what

basis—and that might have been what you were addressing when

I walked in, so you might clarify that for me. Can you explain to

me the rejection, why you felt maybe the RMI mishandled or was

too liberal with addressing not only the physical but the health

needs, but what really was compelling to me is that the housing

needs—and I walked across those islands, which are nothing but

desert—and the people were given little huts and they might have

a television, and every young girl 13 or 14 was pregnant, nothing

to do, no schools. They were just opening a hospital and a school

when we were there.

So I would think because we destroyed a region with our testing,

that we would want to be sure that the adequate funding was there

for however long it takes to bring those islands back to a livable

condition.

Now, can you explain to me upon what grounds was there a rejection of their proposal to increase the funding? Mr. Howard

Krawitz, Acting Deputy Assistant Secretary for East Asian and

Public Affairs, Department of State.

Mr. KRAWITZ. Pacific Affairs. I guess in part the answer is that

again, as I said several times, the State Department didn’t reject

anything. The State Department merely compiled the findings of

various technical agencies concerning the specifics of this specific

petition. And the feeling was from the technical agencies and those

who are experts in remediation and health care and that, and

under the tenets of the law that Congress passed in 1986, the

public law that created the Compact of Free Association with the

Republic of the Marshall Islands, and the 177 Agreement which

was incorporated in that, and the 177 Settlement Agreement,

which comes out of that, that this particular petition didn’t meet

the conditions, it didn’t meet the criteria.

As I said before, we did not attempt to describe the overall relationship or whether or not needs existed or whether or not other

things should be done. We only addressed the specific thing.

However, in talking about that, we have noted that programs

were set up, monies were spent, medical care was provided, and

that a full settlement was reached in 1986 of both parties. The

United States and the Republic of the Marshall Islands agreed

upon, part of which was $150 million trust fund or claims fund,

and the provision to establish a tribunal to make decisions concerning awards and eligibility. The United States had no role in

that tribunal. That was wholly staffed and all decisions and awards

were wholly done by the Republic of the Marshall Islands Government.

That was considered a full settlement. And so part of the problem is—and even there there was a provision left, there was a piece

left in Article IX of Section 177 that said, as we stated out, the five

conditions. Should these things surface and meet the test, then you

have the right to ask Congress for additional compensation.

This is the basis upon which we have made this decision we’re

talking about today. Again, we’re not denying any money or anything. We’re just making a judgment on we were asked our opinion,

41

this is our opinion. The Congress doesn’t necessarily have to follow

our opinion, my understanding.

Ms. WATSON. If I may just follow up——

The CHAIRMAN. The gentlelady’s time has expired.

Ms. WATSON. Could I get one half a minute from someone?

The CHAIRMAN. If you ask the question quick, I will let him answer.

Ms. WATSON. All right. It says ‘‘the Administration’s rejection of

the claims,’’ and what I saw at the tribunal meetings were that

there is a second generation effect and a third generation effect,

meaning that it is going to require additional funds to address the

needs of those people that are impacted from other generations because of the testing. I don’t know—it just says the Administration’s

rejection, so is that the Department of State, Energy and Defense

coming together? I don’t know who rejects those claims. Anyone on

the panel that can respond.

Thank you, Mr. Chairman.

The CHAIRMAN. Can anyone answer that question?

Mr. KRAWITZ. By default, I guess. It’s not a question of—we don’t

reject claims. We reject—let me put it this way. The Office of Management and Budget, OMB, was the final clearinghouse of this. We

did this on behalf of the Administration. I understand that in addition to the Energy Department, the Interior Department, the

Health and Human Services Department, I mean there was a

whole host of folks who have been involved in programs in the

Marshall Islands that were part of this.

What we’re saying is only for this specific petition, this specific

request that was placed in front of Congress under the provision

allowed in Article IX, we were asked our opinion on whether or not

the claims made by the Republic of the Marshall Islands Government met the standards set in Article IX for a request for additional compensation. In the Administration’s view the answer is no,

but that’s the Administration’s view. We were asked to make a

judgment about whether this was a legitimate—these were legitimate claims under the conditions set forth, and the evaluation of

the Administration was they do not meet the criteria.

Ms. WATSON. I want to thank the Chair. I know my time is up.

I will try to raise these questions with other panels too. Thank you.

The CHAIRMAN. Mr. Udall.

Mr. TOM UDALL. Thank you, Mr. Chairman. I appreciate you

joining with the IR Committee holding these very important hearings.

Apparently, the United States maintains that injuries related to

fallout could only occur if a population was within an area restricted to the four northern atolls, and that injuries occurring in

atolls south of the northern atolls cannot be attributed to fallout.

But if you look at this NCI, National Cancer Institute, report that

was prepared for the Senate Committee on Energy and Natural Resources in September 2004, it seems to dispute this position in its

findings that 227 excess cancers will occur within the population

that resided in the other atolls. So we are talking about other

atolls, which in this report show a population of about 2,000 getting over 10 percent excess cancers. Does the Administration support the findings of the National Cancer Institute? He has made

42

his findings. I want to know whether the Administration, whether

the two Administration witnesses——

Mr. KRAWITZ. I am only one part of the Administration here.

Mr. TOM UDALL. Well, you have another part there. I am going

to go to him next.

[Laughter.]

Mr. KRAWITZ. I can’t answer your question. I can only say that

there were studies done. A report was compiled. A lot of folks had

a hand in it. This was the—well, I guess my answer is yes. I mean

we support——

Mr. TOM UDALL. Yes. That is good, that is a good answer, OK.

Do you support them, those findings of the NCI?

Mr. CARY. His testimony today?

Mr. TOM UDALL. Well, this report here. The testimony is I believe he will—the chart on Table 3 here on page 20 of this report

indicates that the NCI found excess cancers, 227 excess cancers. Do

you support that, the witness from the Department of Health,

Health and Human Services? Department of Energy, excuse me,

Department of Energy.

Mr. CARY. Paraphrasing the testimony of my colleague, that is

the upper end of the envelope of an estimation of illness.

Mr. TOM UDALL. So we are talking about a much wider pattern

of exposure in excess cancers. Is that correct, to the witness from

the NCI?

Dr. BOUVILLE. Yeah, that’s undoubtedly correct. It is true that

the population of the four exposed atolls that DOE is considering,

we see much higher exposures than the other northern atolls. But

our estimates are even though the exposures were lower in the

other atolls, there were exposures, and on that basis we estimated

a number of health effects that corresponded to those exposures.

Mr. TOM UDALL. So when we talk about changed circumstances,

my understanding is that the agreement, this part of the 177

Agreement, could not reasonably have been identified as of the effective date of the agreement. I don’t see any way where as of the

effective date of the agreement these excess cancers could have

been identified. I mean we are only having NCI weigh in at a very

recent time in terms of these excess cancers.

Yes, sir, go ahead.

Mr. KRAWITZ. I’m afraid, I’m going to have to say that I might

have just misspoken. I was under the assumption you were talking

about the report that the Administration handed in, not specifically

that. We haven’t had a chance to review yet. Our scientists would

have to look at it, so I can’t answer one way or the other for that

report.

Mr. TOM UDALL. So you are retracting your ‘‘yes’’ you gave me

earlier.

Mr. KRAWITZ. Yes. Well, I keep the yes for this, all right, if it’s

the Administration’s report, but we haven’t had a chance to read

that one actually yet. So if that’s what you were asking about, then

I was wrong.

Mr. TOM UDALL. I was asking specifically about the excess cancers on the other atolls.

Mr. ABERCROMBIE. Would the gentleman yield a moment?

43

Mr. TOM UDALL. Well, I would like to get an answer out of these

gentlemen.

Mr. ABERCROMBIE. This may help you get that if you can yield

to me 10 seconds.

Mr. KRAWITZ. The answer is no, I can’t comment on that

because——

Mr. ABERCROMBIE. But you have commented.

Mr. TOM UDALL. I will yield to my good friend here, go ahead.

Mr. ABERCROMBIE. The problem, Mr. Krawitz, is that you have

commented on it. On page 4 you state without equivocation, ‘‘The

vast majority of scientific evidence, however, documents that the

elevated levels of radiation are limited to the most northerly atolls

and islands, and that even many historically inhabited northern

islands can be resettled under specific conditions.’’ You state without equivocation that the vast majority of scientific evidence says

that it’s limited to the northern atolls.

Mr. KRAWITZ. And that comment comes from our discussion of

this report which was submitted with clearance from all the agencies that were involved. And so I stand by that comment as it pertains to this report which we submitted to the Congress.

Mr. ABERCROMBIE. Yes, but you should have been examining

whether or not it meant the changed circumstances. There have

been reports since then which Mr. Udall is now citing to you that

indicates something else. And if you read the report that Dr.

Bouville himself indicates in his testimony, the scientific evidence

that is being stated for radiation and the extent of the radiation

is measured against a cohort that has to do with native Hawaiians,

for crying out loud, and there has never been a scientific survey of

the extent of radiation in the Marshalls.

Mr. KRAWITZ. But I can only speak, sir, to what——

Mr. ABERCROMBIE. I know you can. That is why you should have

been more circumspect with regard to whether or not the criteria

for changed circumstances were met.

Mr. KRAWITZ. But that’s to this petition, and this is post-petition.

The CHAIRMAN. The gentleman’s time has expired.

Mr. TOM UDALL. Mr. Chairman, could I just have a second here

to wrap this up?

The CHAIRMAN. OK.

Mr. TOM UDALL. The point here is that it is absolutely clear that

this is much more extensive, and so you can technically take a

stand on what is before you, but if they amended their submission,

it is clear that there is a lot that could be put into the submission.

With that, I appreciate the Chairman’s generosity.

The CHAIRMAN. Any further questions? Ms. Bordallo.

Ms. BORDALLO. Thank you very, very much, Mr. Chairman.

I want to just follow up for the record. Congresswoman Watson

mentioned she wondered why we would have selected a beautiful

group of islands in the Pacific for this testing. Well, I am going to

add to that, inhabited islands. That, for the life of me, I will never

be able to understand.

I have another question for you, Mr. Secretary. In Compact I

under the Section 177 Agreement, a nuclear settlement of $150

million was provided to the RMI for damages resulting from the

U.S. nuclear testing. In addition, the U.S. has also provided ex

44

gratia payments estimated in excess of $200 million. My question

to you—and I hope you are going to be able to answer this—the

Administration’s position is clear that there is not legal basis to

provide additional compensation to the RMI under the 177 Agreement. Do you agree with that?

Mr. KRAWITZ. Yes, ma’am, we do.

Ms. BORDALLO. However, if Congress were considering additional

assistance on an ex gratia, would we expect opposition from the

Administration?

Mr. KRAWITZ. You’re going to hate my answer, Congresswoman.

We don’t have a position on that because it’s not what we were

asked to address today.

Ms. BORDALLO. Let me ask you, Mr. Secretary, what would be

your personal opinion?

[Laughter.]

Mr. KRAWITZ. I’ve been waiting all afternoon for that question to

come up. And here’s the problem, I can’t have a personal opinion

because you’re not asking Howard M. Krawitz, you’re asking somebody who’s a representative of the State Department, speaking

under oath on a very specific issue. But when I’m not on oath anymore and we have a private moment, I will be glad to tell you my

personal opinion.

Ms. BORDALLO. Well, I am looking forward to that private moment.

[Laughter.]

Ms. BORDALLO. Thank you.

The CHAIRMAN. Seeing no further questions, I am going to let

this panel go. I want to thank you. I know this has been a long

panel, but the members obviously have a lot of questions and a lot

of concerns, and I thank you for doing the best you can in answering all of their questions.

So I am going to excuse this panel.

The CHAIRMAN. Panel II consists of a group of individuals representing the people of the RMI. Both of our witnesses have flown

thousands of miles to be with us today, which a few members here

today can appreciate.

Mr. ABERCROMBIE. Mr. Chairman?

The CHAIRMAN. Yes?

Mr. ABERCROMBIE. While the panel is being seated, could I ask

your permission to submit for the record some written statements,

including handwritten statements that I will try to get transcribed,

from survivors in the Marshall Islands who requested that I submit

the testimony on their behalf?

The CHAIRMAN. Without objection, it will be included in the

record.

Mr. ABERCROMBIE. Thank you.

[NOTE: The information submitted for the record has

been retained in the Committee’s official files.]

Ms. BORDALLO. Mr. Chairman, I would also like to add to the

record my statement.

The CHAIRMAN. Without objection, all members’ statements will

be included in the record.

[The prepared statement of Ms. Bordallo follows:]

45

Statement of The Honorable Madeleine Z. Bordallo, a Delegate in Congress

from Guam

The issues surrounding the United States Testing of Nuclear Weapons in the

Marshall Islands during the 1950s present to the Committees the opportunity today

to exercise and fulfill essential jurisdictional and oversight responsibility. I am

pleased that you, Chairman Pombo, and Chairman Leach, and Ranking Members

Rahall and Faleomavaega, have worked together in a bipartisan fashion to ensure

that these most serious matters resulting from the legacy of U.S. Nuclear Testing

in the former Trust Territory of the Pacific Islands are merited full and complete,

due and timely consideration by Congress. I too want to thank you for scheduling

this joint hearing to examine the Changed Circumstances Petition and the Administration’s views.

I believe this hearing is particularly important to further understanding the responsibilities that stem from the unique Compact relationship between the United

States and the Republic of the Marshall Islands (RMI). Today is also important to

our understanding of the international obligations that are derived from the decades

of strategic partnership between our two nations.

I support the Republic of the Marshall Islands in their quest to re-examine the

adequacy of the Section 177 agreement given the scientific advancements that have

been made over the past twenty years and the resulting new information. The declassification of documents by the United States during the 1990s that provide information pertaining to the extent and scope of the 67 tests that were conducted between 1946 to 1958 by the U.S. on Bikini and Enewetak Atolls legitimizes this review. The new information should continue to be carefully evaluated and compared

against the original intent of the Section 177 agreement.

For today’s hearing, I believe it is important to examine the Changed Circumstances Petition in context, and to focus on the basis for the inclusion of the

Changed Circumstances provision in the Section 177 agreement. What were the intentions of the parties in formulating the Section 177 agreement? What was the rationale invoked and accepted by Congress at the time of enactment for the inclusion

of the changed circumstances provision? How important was the changed circumstances provision to successfully terminating the U.N. trusteeship and to

transitioning to the Compact relationship? How critical was this provision towards

reaching consensus in support of the United States national security interests in the

Cold War era?

Despite the broad intentions to provide for a full and final settlement, the events

of time and the progress of science, suggest that this issue remains unsettled, that

this legacy continues and that our responsibility to address these issues remains.

The Changed Circumstances Petition essentially in my opinion revolves around two

central questions:

(1) Could the extent of injuries to persons and damage to property as a result of

U.S. nuclear tests on Bikini and Enewetak now known have been reasonably

identified in 1986? and

(2) Does the extent of injuries and damage, and the unpaid claims, render the

agreement of 1986 ‘‘manifestly inadequate?’’

Here I suspect we will find that we have many questions and differing opinions.

The operative words ‘‘reasonably identified’’ and ‘‘manifestly inadequate’’ I suspect

will largely drive these differing points of view. These differences should not be

cause of obstructing our ability to continue to reach for the facts surrounding this

legacy. They should not be used to slow our progress in working to improve the

health and welfare of the Marshallese.

I want to state for the record my profound respect for Ambassador Banny deBrum

and Minister Gerald Zackios, both of whom I again welcome to the committee today.

In working together to appropriately and justly address the questions of United

States responsibility, we renew the relevancy of our bilateral strategic military alliance. Thank you for your commitment to the Compact agreement and for your concern. Si Yu’os Ma’ase. Kommol tata.

The CHAIRMAN. Before you gentlemen take a seat, if I could have

you stand, we customarily swear in all witnesses before the Committee.

[Witnesses sworn.]

The CHAIRMAN. Thank you very much. Let the record show that

they both answered in the affirmative.

46

I would like to first recognize Mr. Gerald Zackios, the Foreign

Minister from the RMI. I again tell our witnesses that your oral

statements are limited to 5 minutes. Your entire written statement

will be included in the record.

Mr. Zackios, when you are ready, you can begin.

STATEMENT OF THE HON. GERALD M. ZACKIOS, MINISTER OF

FOREIGN AFFAIRS, GOVERNMENT OF THE REPUBLIC OF

THE MARSHALL ISLANDS

Mr. ZACKIOS. Before I begin, Mr. Chairman, I would like to ask

permission for a Four Atoll statement to be printed in the record

following my statement, and for the hearing record to remain open

for the remaining period.

Chairman Pombo, Chairman Leach, distinguished Mmembers, I

am accompanied here today by the Minister of Health, Alvin

Jacklick, and representatives of the four atolls most affected by the

U.S. nuclear weapons testing program, including Utrik’s Michael

Kabua, one of our traditional leaders, and other representatives.

On behalf of President Note and the RMI Government, I want to

thank you for convening a hearing on the legacy of the U.S. testing

program and the RMI’s changed circumstances petition. Our bilateral relationship is perhaps the closest strategic alliance ever defined by a treaty between the U.S. and another nation. We have

always stood with the United States in its wars on terror, the terror of the Soviet threat during the Cold War and today’s war on

terror, where our sons and daughters are serving side by side with

U.S. troops in every branch of your armed services. Today U.S.

military facilities in the RMI make your homeland, our islands and

the entire world safer every day.

Two decades ago, Congress anticipated enduring problems for

RMI as a result of the 67 nuclear weapons tests, including human

hardship, uncompensated land damages and ongoing public health

challenges that overwhelm our capabilities. Recognizing this solemn responsibility, your predecessors joined our leaders in an

agreement that increased but did not end U.S. commitment.

The Section 177 agreement has been more comprehensive than

prior measures, but remains piecemeal and incomplete.

Our radiation-related needs became more urgent when the National Cancer Institute recently predicted that hundreds of radiation-related cancers from throughout the Marshall Islands are expected in coming years. This is a changed circumstance. Consequently, the RMI Government asks for your continued assistance

to, one, plan for health care monitoring and treatment of future

cancer patients anticipated by the NCI; two, provide continued

funding in Fiscal Year ’06 and beyond for the 177 health care program with an inflation adjustment; three, address the health care

needs of all populations exposed to significant levels of radiation in

the Marshall Islands, an area broader than just the four atolls currently recognized by the U.S. Government as exposed to radiation;

four, provide the Nuclear Claims Tribunal with the funding to pay

for the personal injury and private property damage claims it has

awarded; five, create a long-term stewardship plan for its nuclear

waste storage facility on Runit Island, as the U.S. would be required to do domestically; and six, continue to declassify and proVerDate 11-MAY-2000 13:32 Oct 24, 2005 Jkt 000000 PO 00000 Frm 00052 Fmt 6633 Sfmt 6602 J:\DOCS\21448.TXT HRESOUR1 PsN: HRESOUR1
47

vide the RMI documents pertaining to the U.S. nuclear weapons

testing program.

Based on the standards for addressing similar radiation problems in the U.S. and pursuant to the Compact, the RMI is seeking

additional assistance as provided by Congress in the Section 177

Agreement of the Compact. The RMI reluctantly, but in good faith,

accommodated the U.S. proposed settlement in the original Compact negotiations, but only because the U.S. agreed in the 177

Agreement to work with the RMI, and I quote, ‘‘to create and maintain in perpetuity a means to address past, present and future consequences of the nuclear testing program including the resolution

of resulting claims.’’

The term ‘‘full settlement’’ has been intentionally misconstrued

in the State Department report to currently argue that the agreement was a simple payment of $150 million to terminate Federal

Court cases. However, that was not the intent of Congress or past

administrations. The RMI would never have accepted the initial

$150 million payment as a full settlement. That amount was politically determined and not tied to any known or attempted estimate

of actual damages. Rather, the RMI agreed to the settlement only

because the U.S. agreed in the Section 177 Agreement to a ‘‘just

and adequate’’ compensation in the settlement of all claims. The

177 Agreement included establishment of a tribunal to adjudicate

all claims fully, and adequate health care for affected populations.

Our knowledge of the extent of injury to our people and damage

to our lands has increased, due in part to new information released

by the U.S. and expertise developed by the tribunal. The inadequacy of funds for both the tribunal and health care under the 177

Agreement has become more obvious. If tribunal awards cannot be

paid as suggested by the State Department, then the alternative

remedy is meaningless.

We believe that the report by the Congressional Research Services is a fair and objective summary and provides a useful starting

point for addressing issues outlined in the CCP.

The RMI Government appreciates the assistance provided in the

177 Agreement to date, as well as all forms of ex gratia assistance.

The RMI also appreciates the willingness of the Department of Energy to address many of our needs within the limited scope of its

mandate.

Despite our best efforts, there are still gaping holes in the piecemeal approach. We urge Congress to address the gaping holes that

are evident such as the substandard or nonexistent health care for

communities exposed to significant radiation, grants that cannot be

paid, and the inability of numerous people to return to their home

islands more than 50 years after the BRAVO test.

As you have looked to the Marshall Islands to protect freedom

and to win the Cold War, we look to you, Mr. Chairman, and the

Congress to address the adverse consequences of the U.S. strategic

achievement for the people and environment in the Marshall

Islands.

Thank you very much.

[The prepared statement of Mr. Zackios follows:]

48

Statement of The Honorable Gerald M. Zackios, Minister of Foreign Affairs, Government of the Republic of the Marshall Islands

Chairman Pombo, Chairman Leach, Distinguished Members of the House Committee on Resources and the Subcommittee on Asia and Pacific of the House

International Relations Committee:

I am accompanied here today by the Minister of Health, Alvin T. Jacklick, and the Senators and Mayors of the 4 atolls most affected by the U.S. Nuclear Weapons

Testing Program. On behalf of President Kessai H. Note and the Government of the Republic of the Marshall Islands (RMI), I want to thank this Committee and Subcommittee for conducting a hearing on the legacy of the U.S. nuclear weapons tests in the Marshall

Islands and the RMI’s Changed Circumstances Petition (CCP) (Map I). This hearing

is one of many which Congress and the RMI have developed to establish a record

of our efforts to address the full range of needs linked to the U.S. Nuclear Weapons

Testing Program. Today I will focus my remarks on the RMI’s specific requests in

the CCP, issues of equity, and new information about the consequences of radiation

exposure that compel all of us to update our understanding of the effects of the U.S.

Nuclear Weapons Testing Program in the RMI. I will also explain the reasons why

the RMI government strongly contests the findings of the U.S. State Department

staff in its report regarding the CCP. But first let us consider the fundamental reason for our coming together today.

The Compact of Free Association is perhaps the closest strategic alliance ever defined by a treaty between the U.S. and another nation. We have always stood with

the United States in its wars on terror—the terror of the Soviet threat during the

Cold War, and today’s war on terror where our sons and daughters are serving sideby-side with U.S. troops in every branch of your armed services. Today, U.S. military facilities in the RMI make your homeland, our islands and the entire world

safer every day. No other nation in the world stands behind the U.S. more at the

United Nations. We have a proud record of working hand-in-hand with the U.S. to

deliver key votes in that world body.

The only reason we are meeting today is because of an enduring problem resulting

from the U.S. Nuclear Weapons Testing Program. This problem—human suffering

and land damages that remain uncompensated, along with ongoing public health

challenges that overwhelm our capabilities—was actually anticipated by your committees nearly two decades ago. Recognizing the solemn responsibility to address

the repercussions of America’s nuclear weapons research, your predecessors joined

with our leaders in efforts that over the past 19 years have been positive, but piecemeal, and ultimately inadequate given the enormity of the impact that continues

to emerge—as radiation-related illnesses appear to this day in much higher quantities than otherwise would be the case.

As directed by Congress back in 1986, we are today presenting these circumstances—and our estimate of what is required to address them—in the form of

a petition. But regardless of the form and legal framework in which they are presented, the reality is that we are seeking your continued partnership as we work

to cope with these serious matters.

This sad fact was made all the more serious when the National Cancer Institute

(NCI) verified last September that hundreds of radiation-related deaths from

throughout the Marshall Islands are still expected in coming years. Consequently,

the RMI government asks for your continued assistance to:

• address the healthcare needs of all populations exposed to significant levels of

radiation in the Marshall Islands—an area broader than just the 4 atolls currently recognized by the U.S. government as exposed to radiation.

• provide the Nuclear Claims Tribunal with the funding it needs to provide compensation for the personal injury and private property damage claims it has

awarded, as mandated by Congress in the Section 177 Agreement that is part

of the Compact of Free Association between our two nations. If Congress determines the private property awards involve issues of fact or law that require further evaluation or adjudication are too large or complex for Congress to consider, the RMI government supports the referral of these claims to the U.S.

courts in a manner prescribed by Congress to determine the merits of those

awards. Until these claims are addressed as intended in the 177 Agreement,

there can be no full settlement for the damages and injuries sustained in the

RMI.

• create a long-term stewardship plan for its nuclear waste storage facility on

Runit Island as it would be required to do in the United States.

Based on the standards for addressing similar radiation problems with American

citizens, and pursuant to the Compact of Free Association, P.L. 99-239, the RMI is

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seeking additional assistance as provided by Congress in the Section 177 Agreement

of the Compact. The RMI government is open to working with Congress and the Administration to explore all avenues to address the needs of the people in the RMI

affected by the detonation of 67 atomic and thermonuclear weapons within our

boundaries during the time that the U.S. government was the sole legal authority

governing our territory. We thank the U.S. Department of Energy for its willingness

to address lingering needs to the best of its ability within the limited scope of its

mandate from Congress as well as the ex gratia assistance extended by Congress

from time-to-time. Despite these best efforts, however, there are still gaping needs

linked to the U.S. Nuclear Weapons Testing Program in our homeland. However, it is now apparent that neither the ratification of the Compact in 1986

nor the 20 year renewal of the Compact in 2003 has fully resolved the legacy of U.S.

nuclear testing in our islands from 1946 to 1958. Instead, our governments must

continue to meet our on-going commitments under the original nuclear claims settlement pursuant to Section 177 of the Compact, and other mutually agreed measures. For our governments to make full and final resolution of the nuclear testing claims a part of the Compact success story, Congress must remember the obligations

openly and affirmatively undertaken in the Section 177 Agreement in 1986. When Congress approved the Compact, it insisted on retaining unprecedented and extraordinary jurisdiction over these claims under the changed circumstances provisions of Article IX of the Section 177 Agreement; the changed circumstances provisions are not a narrowly restricted and purely legalistic standard as argued by U.S.

State Department staff in response to the RMI Changed Circumstances Petition.

This unprecedented claims settlement was proposed by the U.S. to provide an alternative to litigation of these claims in the U.S. courts in order to avoid delay of U.S.

strategic programs at Kwajalein Atoll at the height of the Cold War.

Between 1986 and the present, the Section 177 settlement has been substantially,

but only partially, implemented. It has been a success in the sense that it terminated court cases and allowed the U.S. to carry out strategic programs in the RMI

that helped end the Cold War. The RMI reluctantly, but in good faith, accommodated the U.S. bottom line in the Compact negotiations, but we did so only because

the U.S. agreed in the Section 177 Agreement to work with the RMI, ‘‘...to create

and maintain in perpetuity, a means to address past, present and future consequences of the nuclear testing program, including the resolution of resultant

claims.’’

The term ‘‘full settlement’’ has been hijacked in the State Department staff report

to argue that the Section 177 Agreement was a simple payment of $150 million to

terminate the federal court cases that were headed for a scheduled trial date in

1984—that was not the intent of Congress of the past administrations. The RMI

would never have accepted the initial $150 million payment as a full settlement.

That amount was politically determined and not tied to any known or attempted

estimate of actual damages. Rather, the RMI agreed to the settlement only because

the U.S. agreed in Section 177 to ‘‘just and adequate’’ compensation in the settlement of all claims. The Section 177 Agreement included establishment of a Nuclear

Claims Tribunal to adjudicate all claims fully, in order to ensure adequacy of compensation based on actual computation of damages through an alternative judicial

process.

Our knowledge of the extent of injury to our people and damage to our lands has

increased, due in part to new information released by the U.S. and expertise developed by the Tribunal. The inadequacy of the Section 177 compensation, including

the trust fund for claims, and measures to address the health needs of our people

has become more obvious. If Nuclear Claims Tribunal awards are allowed to become

worthless, then the creation of the process will have been a hoax.

We believe that on balance the report by the Congressional Research Services is

a much fairer and more objective summary, and provides a good starting point for

addressing issues outlined in the CCP.

History/Background:

Most people in the world think about Hiroshima when they think about nuclear

devastation. We can imagine the buildings that were leveled, and the incineration

of all living things—images we associate with wartime. When people think about

the Marshall Islands, however, they do not seem to conjure any sense of what

nuclear weapons did to the country or the people. Yet, how many people in the

United States are aware that the Marshall Islands experienced the equivalent of 1.6

Hiroshima-sized bombs every single day during the 12 years that the U.S. government detonated nuclear weapons in our country? In terms of radioactive iodine

alone, 6.3 billion curies of iodine-131 was released to the atmosphere as a result of

the nuclear testing in the Marshall Islands—an amount 42 times greater than the

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150 million curies released by the atmospheric testing in Nevada, 150 times greater

than the estimated 40 million curies released as a result of the Chernobyl nuclear

accident, and 8,500 times greater than the 739,000 curies released from Atomic Energy Commission operations at Hanford, Washington (Graph I—comparison of radiation levels).

From 1946 to 1986, the U.S. Government exercised all powers and determined all

functions of government in the Marshall Islands. With the exception of the brief period of military rule after liberation of the islands from Japan, from 1947 to 1986

the people of the Marshall Islands had only those legal, political and citizenship

rights prescribed pursuant to U.S. federal law. The United States government was the administrating authority for the people of the Marshall Islands from 1945-1986. As the colonial power, the U.S. government

maintained tight control over all information about the activities that took place on

our islands, particularly the top secret scientific data related to the nuclear weapon

testing activities. This scientific data documented literally every impact of radiation

and nuclear detonations on an island ecosystem and its people, but remained hidden

from Congress, the U.S. public, and the Marshallese people for decades. When documents were declassified by the U.S. government in the early 1990’s, information became available that was not known to the RMI government and its negotiators during discussions beginning in the late 1970s to terminate the trusteeship and to establish our Compact with the United States.

This is precisely the situation that Congress foresaw when it envisioned the CCP

mechanism. Based on new information gathered from U.S. government documents,

and scientific and medical advancements about radiological safety, clean-up, and the

effects of radiation on health—information that was not previously known to the

RMI government and its Compact negotiators—the RMI government submitted its

Changed Circumstances Petition to you, the U.S. Congress.

History of the U.S. nuclear weapons testing program in the RMI

During World War II, the United States wrested control of the Marshall Islands

from a brutal Japanese military regime, and the U.S. Navy became the administering authority for the Marshall Islands in 1945. In 1947, the United Nations

placed the administration of the Marshall Islands with the United States government as the Marshall Islands became a part of the United Nations Trust Territory

of the Pacific Islands (TTPI). From 1946-1958, the United States detonated 67 atomic and thermonuclear weapons in the Marshall Islands. The tests were designed to

produce as much local fallout as possible both to allay international concerns about

global fallout and to create a scientific laboratory in the Marshall Islands where

U.S. government researchers could study the effects of radiation on the oceans and

lagoons, the land, and the Marshallese people.

Of this arsenal of 67 weapons, 18 of the detonations were in the megaton range.

The largest of all the tests was the Bravo detonation of March 1, 1954. Bravo turned

out to be the largest nuclear weapon ever detonated by the United States government. The fifteen-megaton test created a mushroom cloud 25 miles in diameter. The

force from the weapon pulverized coral, coconut trees and any objects in its path,

and the unleashed energy gathered debris into the mushroom cloud where it mixed

with radioactive materials. When the force of the weapon subsided and the cloud’s

materials fell to the ground—what we refer to as radioactive fallout—it coated the

seas, islands, food crops, water catchments, houses, animals, and people.

Marshallese encounters with the bombs did not end with the detonations themselves. U.S. government documents released in the 1990s show us that the U.S. government exposed Marshallese citizens to radiation from nuclear weapons to study

the effects of radiation on human beings so the U.S. would better understand the

impacts of a nuclear war on U.S. soil, or the effects of radiation on its troops if an

enemy detonated a nuclear weapon during combat. For one series of tests prior to

Operation Castle in 1954, the U.S. government evacuated inhabited communities

downwind from the ground-zero locations as a precaution, communities living on

Rongelap, Ailinginae, Rongerik, Wotho, and Enewetak. When the U.S. detonated its

largest thermonuclear weapon, Bravo, however, it decided not to evacuate communities directly downwind from the proving ground and redrew its maps of the evacuation area to exclude the inhabited islands of Rongelap.

U.S. personnel did not return to evacuate the Rongelapese until more than two

days after they knew that radiation had coated the islands. After evacuation, the

U.S. placed the ‘‘exposed’’ people of Rongelap and the community of Utrik into a secret medical study, called Project 4.1, to understand the effects of radiation on

human beings. A notation for this study appeared in a 1953 document planning the

scientific tests in conjunction with the Bravo test the next year (Joint Task Force

7, 1953). The U.S. government also chose a ‘‘control’’ population as part of its

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study—people who were later injected with or told to drink radioactive substances

for comparative study purposes (Advisory Committee on Human Radiation Experiments 1995). Groups of people, such as the Ailuk community, were not evacuated

after the Bravo event (although they were exposed to levels of radiation sufficient

to warrant evacuation) because the atoll’s population of 401 people at the time was

considered too large and cumbersome to evacuate. The people of Ailuk, Likiep and

other neighboring atolls that received high doses of radiation remained in their radiation-laced environments without medical attention or efforts to reduce exposure to

radiation.

The current Administration position

As noted in it’s report to Congress in response to the RMI’s CCP, the State De- partment feels that there are no changed circumstances, that radiation remains limited to just four inhabited atolls in the Marshall Islands (as outlined in the DOE

survey of 1978), and that the $150 million provided in 1986 as a downpayment for

damages and injuries for the testing program represents a full settlement. The RMI

government strongly disagrees with these conclusions by the State Department.

Specifically, we believe that: • more damages and injuries occurred than have been recognized by the U.S. government; • understandings about radiation affects, clean-up and public safety have advanced dramatically, resulting in the need to update U.S. policy toward radiation exposure in the RMI, and;

• the 177 Agreement is only a full settlement once all of the intents of the Agreement have been achieved.

As stated earlier, several intentions of the 177 Agreement have not come to fruition and once again require the attention of Congress.

Earlier this year, President Note outlined some of the RMI’s major points of contention with the State Department report, including the following:

1. Tribunal. The State Department assertion that the Nuclear Claims Tribunal

(NCT) established under U.S. Public Law 99-239 exceeded its scope of work by compensating illnesses not recognized by the U.S. Radiation Exposure Compensation

Act (RECA) is misleading. For example, radiation sickness and beta burns that are

not a factor for U.S. testing victims were compensated by the NCT. Similarly, the

assertion by departmental staff that the extent of damage to private property (including clean-up costs) could have been known at the time the Compact was negotiated is easily disproved based on changing safety and environmental standards,

as well as actual experience with clean-up costs in both U.S. domestic and RMI

radiologically contaminated sites. The RMI recognizes that the proceedings of the

Tribunal involved difficult and contentious issues, similar to adversarial litigation

in U.S. courts. However, the independent assessment of the Nuclear Claims Tribunal’s record and proceedings made by former U.S. Attorney General Richard

Thornburgh in 2003 confirmed that the Tribunal adhered to American standards of

jurisprudence, and concluded that the funds available to compensate for private

property damage and loss, and personal injury were ‘‘manifestly inadequate.’’ I

would like to enter the Thornburgh report to be included as part of the hearing

record.

2. Exposure Levels. Congress should not accept the assertion that only the 4 atolls

were subjected to high levels of radiation exposure. The Breslin-Cassidy Report of

1955 (cited in the State Department report, but only in reference to Rongelap)

shows that many atolls and islands within the Marshall Islands were exposed to

high levels of radioactive fallout and contamination well beyond safe levels

(Graph II—1955 doses for the mid-range atolls from the Castle series). The BreslinCassidy Report, among others, was classified at the time the Section 177 Agreement

was concluded, and only became available in 1994. This is a changed circumstance.

Furthermore, at the time of the 177 Agreement, the acceptable dose limit for a

member of the public was 500 mrem per year. The current dose limit and cleanup criteria specified by the U.S. Environmental Protection Agency (EPA) and adopted by the Nuclear Claims Tribunal is 15 mrem per year. This reduction in acceptable exposure levels is a changed circumstance. Similarly, the current U.S. EPA

standard for radiological safety needs to be compared to the present U.S. position

pertaining to the RMI which remains affixed to the standards of a 1978 DOE survey

of the 14 northern-most atolls in the RMI. That survey, and other information,

served as the basis for determining which areas and populations were exposed to

excessive amounts of radiation in the RMI, thus warranting U.S. government assistance per the Compact. When applying the U.S. EPA’s 15 mrem standard of maximum acceptable exposure to the 1978 survey information that is the basis of the

177 Agreement, U.S. government data clearly reveals that residents of the following

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atolls were expected to be exposed over a three month period to levels of radiation

far in excess of the 15 mrem annual standard (Graph III—1978 DOE doses):

Rongelap—400 mrems per year

Ailinginae—270 mrems per year

Mejit—100 mrems per year

Ailuk—90 mrems per year

Utrik—75 mrems per year

Likiep—75 mrems per year

Jemo—50 mrems per year

Wotho—30 mrems per year

Ujelang—20 mrems per year It should also be noted that of the above listed atolls, only Rongelap, Ailinginae, and Utrik have been eligible for DOE medical or environmental monitoring programs. Graph III compares DOE doses for mid-range atolls to the current U.S.

standard of 15 mrem. We believe that the healthcare needs of the mid-range atolls

should be reconsidered based on DOE’s own data. This 1978 survey provides data

for just the 14 northern-most atolls and does not include dose estimates for other

inhabited atolls, particularly inhabited areas in close proximity to those listed

above. Furthermore, the survey only provides dose estimates for 1978 and does not

address the issue of exposure levels on inhabited atolls that were even higher prior

to 1978, particularly in the 1950s when all 18 of the megaton tests occurred and

people resided on these islands. A 1955 U.S. government document that tallies the

cumulative exposures from all 6 tests in the Castle series, including Bravo, lists the

exposure levels for some of the same atolls listed above (Breslin and Cassidy 1955),

including:

Rongelap—202,000 mrems

Ailinginae—67,000 mrems

Ailuk—6,140 mrems

Utrik—24,000 mrems

Likiep—2,196 mrems

Jemo—1,978 mrems

Wotho—784 mrems

These exposure levels would certainly be higher if the remaining 61 tests were factored in. It should also be noted that an atoll-specific approach to radiation exposure, as instigated by the 1978 survey, fails to consider the exposure levels of

Marshallese laborers who worked for DOE on Bikini and Enewetak to assist with

the clean-up efforts of the ground zero locations. In addition to not being eligible

for U.S. funded healthcare, these workers are not eligible for any U.S. government

programs to monitor their health, and were recently deemed ineligible to participate

in a U.S. Department of Labor (DOL) compensation program for DOE workers exposed to radiation because they are not U.S. citizens—despite the fact that they

were citizens of the U.S. trust territory when they were employed as DOE contractors. In comparison, American citizens who are eligible for this program receive

$150,000 in compensation plus future medical coverage, including doctor and hospital visits, medical treatments, diagnostic laboratory testing, prescription drugs,

and other benefits.

The RMI government does not contest the scientific data gathered by DOE in 1978. However, it is essential that this data be reviewed, interpreted, and compared

to updated knowledge about the effects of radiation and current U.S. standards for

ensuring public safety. 3. Standards. Congress should reject the State Department’s attempt to apply a less rigorous standard of environmental safety for the Marshall Islands than the

U.S. Government applies to communities in the United States exposed to radiation,

such as Yucca Mountain. In a press release dated June 6, 2001, Former EPA Administrator, Christie Whitman, calls the 15 mrem a year statement ‘‘very stringent

public and health and environmental protection standards for Yucca Mountain.’’ She

went on to say:

These are strong standards and they should be. We designed them to ensure that people living near this potential repository will be protected—now

and for future generations... They are designed to protect the residents closest to the repository at levels that are within the agency’s acceptable risk

range for environmental pollutants. This corresponds to a dose limit of no

more than 15 millirem per year from all pathways.

In a country with just 70 square miles of land, private property is our most precious legacy and defines who we are as people—land provides the blueprint for our

social and kinship networks and for our rights to cultivate resources. Landowners

in the Marshall Islands require all the resources available to them to support their

families. For the atolls contaminated with radiation, the question then becomes: to

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what level should the atoll be cleaned to protect human health and the environment? How are we to compensate our citizens for one of the key building blocks of

society—private property? In the U.S., the EPA has answered that question employing clean-up standards that keep resulting risks of cancer incidence within range of 1 in a million, and 1

in 10,000. Such a clean-up standard is applicable to any residual contaminant,

whether it is chemical or radionuclide. For example, the standard for clean-up after

the attack on the World Trade Center was at the 1 in 10,000 risk range. With regard to radionuclides, the EPA has determined that the lower end of the risk range

(1 in 10,000) translates into a clean-up level of approximately 15 mrem per year.

This new standard is a changed circumstance. 4. Quantifying Compensation. Congress should not accept the State Department report’s misleading inflation of U.S. Government assistance to communities affected

by the U.S. Nuclear Weapons Testing Program. A great proportion of the expenditures noted by the State Department did not benefit the communities affected by

the U.S. Nuclear Weapons Testing Program, but instead provided funding for the

U.S. Government to conduct research into the effects of radiation on human beings

and the environment. A significant portion of the amounts cited in the staff report

were for public works projects and program activities of the U.S. Government for

its own purposes and interest, and did not compensate individuals for injuries and

loss of property. Historically, Congress has had to intervene to ensure that seizure

of private property and injury or loss of life is fairly compensated, and that is precisely why Congress reserved the right for the RMI to seek further compensation,

and for itself the authority and responsibility to determine if compensation provided

to date is adequate.

5. Equity. Congress should question and critically evaluate the provocative sug- gestion that the RMI Government and the communities most affected by the U.S.

Nuclear Weapons Testing Program have received excessive amounts of money. In

fact, the RMI has received only a fraction of the amount the U.S. Government has

spent on areas in the United States exposed to radiation during the Cold War (Map

II—comparison of U.S. and RMI exposed areas).

6. Just Compensation. The U.S. government took private property belonging to Marshallese families for nuclear testing purposes. When private property is taken

by the government, the landowners are entitled to just and adequate compensation.

The U.S. recognized this constitutional requirement in Section 177 of the Compact

in which it accepted responsibility for the just compensation owing for loss or damage to property resulting from its nuclear testing program. Although the State Department’s staff report fails to recognize the just compensation obligation of the U.S.

Government, the U.S. courts did not. The U.S. courts held that the U.S. not only

accepted the obligation to provide just compensation but that such obligation was

a constitutional requirement. The U.S. courts noted that the U.S. agreed that the

Marshall Islands Nuclear Claims Tribunal was to determine whether the $150 million provided by the U.S. pursuant to the Section 177 Agreement was just and adequate compensation. The Marshall Islands Nuclear Claims Tribunal, using well-established U.S. legal principles, determined that just compensation to the affected

landowners was significantly in excess of the $150 million provided pursuant to the

177 Agreement. The Congress, through the Changed Circumstances Petition process, has an opportunity to fulfill the obligation of the U.S. government by providing

just and adequate compensation to the landowners (the Marshallese families) for the

damages and loss of use suffered by them.

The funding of private property awards would permit the affected Marshallese to

rid their land of radiological contamination, rehabilitate the soil, revegetate the

land, resettle their home islands, and provide the means to establish a local economy in the fishing and tourism sectors. Thus, the funding would provide the resources which would permit them to once again become self-reliant.

7. Compact Negotiations. We object to the assertion that the RMI Government

should have included radiation-related damages and injuries as part of its Compact

negotiations with the United States. During the negotiations for the first Compact

from 1978 through 1985 much of the information about damages and injuries was

unknown, the knowledge of which today represents a changed circumstance. Furthermore, it is disingenuous to assert that the RMI should have sought funding for

some of its CCP requests as part of the recently concluded Compact renewal discussions. During those discussions, the State Department made it clear to the RMI that

nuclear and CCP issues would not be part of the Compact renewal negotiations because they were to be handled separately by Congress. Now, the Department of

State is claiming that these matters should have been included in the original discussions. My government looks forward to the opportunity to provide Congress with

the written record of State Department policy regarding these issues.

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8. Full settlement. Perhaps the most misleading representation of all in the de- partmental staff report is the thematic suggestion that the nuclear claims settlement was a full settlement, and that this means no further compensation should

be considered. Congress approved the full settlement under terms that expressly

and explicitly included the right of claimants to seek further compensation through

the ‘‘Changed Circumstances’’ process. Thus, Congress kept open both political and

legal avenues for further redress of grievances and just compensation. Not only does

the departmental staff report fail to faithfully reflect these principles of the settlement, the report fails to inform Congress that the U.S. federal courts that dismissed

pending court cases involving these claims expressly left the door open to further

proceedings in the event that compensation under the settlement proved inadequate

by U.S. standards of justice. This omission and others require a more thorough analysis of the CCP and awards of the Tribunal in order for Congress to determine what

additional measures may be necessary to fulfill the terms of the settlement of

nuclear claims approved by Congress in 1986 under U.S. Public law 99-239. Since the U.S. Nuclear Weapons Testing Program was conducted at a time when the U.S. governed the Marshall Islands and its people with the same authorities extended to the United States itself, we believe the same standards of care, safety,

redress of grievances and justice that Congress has adopted with respect to the effects of nuclear testing in the U.S. mainland should be honored for the Marshallese

people. In particular, we believe there should be equity in terms of healthcare availability and standards, environmental clean-up, radiation protection standards for

the public, and compensation.

Without question, the cost of addressing radiological damages and injuries is expensive. The price tag for the requests made by the RMI government is high, but

they are based on the level of care, protection and compensation that U.S. citizens

receive for similar circumstances. Put another way, there was nuclear weapons testing in the United States and there was nuclear weapons testing in the Marshall

Islands, but there is great disparity between remediation measures for Marshallese

citizens compared to U.S. citizens. The RMI is not asking for special treatment or

to make its people wealthy with compensation money, it is only asking for fairness.

The U.S. government conducted its nuclear weapons testing program in the Marshall Islands because it recognized the hazards of these activities for its own citizens

and ecosystems. It seems only fair that the Marshall Islands receive equity in terms

of U.S. response.

All people who were exposed to levels of radiation above the current U.S. standard

for public safety, 15 mrem, or whose health is adversely affected by the nuclear

weapon tests should be granted access to the best available U.S. standard of primary, secondary, and tertiary health care services, including specialty care for

radiogenic illness and medical monitoring. This model is consistent with a program

mandate from the U.S. Congress in 1980 [P.L. 96-205, Sec 106 (a)], which specified

‘‘...a program of medical care and treatment...for any injury, illness, or condition

which may be the result directly or indirectly of such nuclear weapons testing program.’’

To put the assistance provided to the RMI in contrast to that provided to American citizens, consider that the entire amount of the 177 Agreement, $150 million

for all past, present, and future damages and injuries related to the testing program, is the same amount of money made available to the State of Pennsylvania

for public education after the Three-Mile Island incident—an incident resulting in

no known loss of life or future health risks to the adjacent community.

a. Equity in healthcare

Downwinders and DOE workers exposed to radiation in the United States receive

a high standard of healthcare for their radiation exposure—a level that greatly surpasses the healthcare available to Marshallese citizens exposed to radiation. The

United States government has taken responsibility for the deleterious health consequences of the U.S. Nuclear Weapons Testing Program in the Marshall Islands

in the 177 Agreement. However, the impact of the testing program on the health

and well-being of the Marshallese people far exceeds the present capacity and provisions of the Compact. Current programs, which are designed to care for radiogenic

illnesses and the health consequences of nuclear weapons testing, are limited in

scope and resources. The 177 Agreement envisioned adequate health care for patients exposed to radiation. The gross inadequacy of current programs to address

the adverse health consequences of the U.S. nuclear weapons testing program represents a changed circumstance.

Medical care is part of the comprehensive package owed to the people of the RMI

as part of their nuclear compensation. The higher costs associated with health care,

medical surveillance, and radiological monitoring of Marshallese citizens affected by

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the U.S. Nuclear Weapons Testing Program could not reasonably have been identified at the time of the 177 Agreement and constitutes a changed circumstance. Future planning and funding must develop and sustain the RMI healthcare system’s

efforts to deliver comprehensive and culturally tailored health care services to the

affected populations, as envisioned in the Preamble of the 177 Agreement. The 177 HCP program has always been grossly under-funded and unable to de- liver an appropriate level of health care as anticipated in the Compact. Provision

of tertiary care services (off island health care that cannot be provided in the RMI)

has not been available for 7 to 10 months out of each year. Secondary health care

(inpatient and hospital-based healthcare) has been delegated to the RMI hospital

system, which is not equipped to provide the appropriate level of inpatient care for

the 177 population. Hence, the individuals in the 177 HCP have been subjected to

a substandard level of primary, secondary and tertiary healthcare services since the

program’s inception. With less than $12 per patient per month, this is the only

healthcare available to Tribunal awardees with radiological illnesses and the vast

majority of the 4 atoll population. If done properly, cancer care, in particular, is very expensive to manage as it re- quires specialized doctors, screening and registries, pain control management, diagnosis and an array of treatments such as chemotherapy, surgery, radiation therapy

and immunology. Cancer cases are often diagnosed at very late stages in the RMI

because of a lack of basic screening and treatment elements. The RMI has no cancer

registry, no oncologist, no capacity for specialized oncological surgery, no chemotherapy, no pathologist until last year, and no regular funds for cancer referral. In

short, no health infrastructure has ever been built to address cancer, thyroid, or

other radiation-related illnesses in the Marshall Islands.

The obligation to provide medical care for the adverse consequences of the U.S.

Nuclear Weapons Testing Program cannot be met without comprehensive medical

monitoring of populations previously exposed to ionizing radiation. A lack of medical

monitoring has precluded the opportunity for early diagnosis and treatment of cancer and other radiogenic illnesses. Failure to detect and treat cancers and other

radiogenic illnesses in their early stages results in more pain and suffering for the

patient, and a larger cost of care for the healthcare institutions.

This is particularly important for us to consider given the 2004 report by the National Cancer Institute predicting that more than half of the cancers resulting from

the U.S. Nuclear Weapons Testing Program have yet to develop or be diagnosed, including 40% of our thyroid cancers resulting from radiation exposure. The hundreds

of people still expected to contract cancer exceed the populations of the 4 atolls defined by Congress as the area exposed to radiation and hence eligible for U.S. government assistance. This constitutes a changed circumstance.

I also want to note that some people suggest that the future cancer burdens do

not justify further U.S. action as the Tribunal has already made personal injury

awards outside the 4 atolls and to a higher number than the anticipated future burden. My response to this is that the presumptive formula used by the Tribunal is

based on similar types of compensatory programs created by Congress. More importantly, the RMI is concerned about the healthcare needs of these people. The Tribunal provides a portion of awards for some cancers; my hope is to improve the

RMI’s medical surveillance capacity so we can provide early diagnosis and better

care to these future cancer patients.

b. Equity in clean-up

While communities downwind from the Nevada test site and DOE workers provide a comparison for personal injury disparities between the U.S. and the RMI,

clean-up activities at Hanford, Washington provide a similar comparison for restoration of contaminated lands in the U.S. and the RMI. Again, for comparative purposes, 8,500 times more radioactive iodine was released in the RMI than at Hanford.

In response to the environmental contamination caused by Hanford, the U.S. government appropriates $2 billion and employs approximately 11,000 workers annually to assist with the clean-up. From the FY05 budget, the Department of Energy

is estimating a total life cycle cost of $56 billion and a completion date in 2035. Due

to the manifest inadequacy of Tribunal funding, the Tribunal does not have the

means to fund the private property damage awards it has made. To date, the Tribunal has paid approximately $4 million to Enewetak and Bikini for their property

damage awards totaling $1.1 billion ($454 million and $629 million respectively), or

just over 50% of an annual clean-up appropriation to Hanford. Again, the RMI government believes that Marshallese citizens have a right to the same clean-up standard as the U.S. maintains for its own citizens. The goal for clean-up at Hanford is

15 mrem, yet the U.S. government maintains that the RMI should settle for the less

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rigorous international or outdated standard, despite the fact that Marshallese citizens were wards of the U.S. government when their exposure to radiation occurred.

c. Equity in radiation protection standards

The RMI government requests the same level of radiation protection the U.S. EPA currently applies, and particularly its focus on protecting the maximum exposed person since this approach ensures the protection of everyone. The protection to the

Marshallese who live on their land and are dependent on its resources is no less

important than the protection of the U.S. public who may reside near Yucca Mountain, for example. Each group is entitled to the same level of protection which

means the application of the same 15 mrem per year safety standard.

d. Equity in compensation

For purposes of comparison, the disparities between the personal injury programs for the RMI and Downwinders in the U.S. are clear. The total weapons yield for the

RMI was 108,496 kilotons, approximately 100 times greater than the 1,096 kilotons

detonated in Nevada. The Tribunal has made awards for $87 million dollars in personal injuries with a shortfall of $15.5 million due to an inadequacy of funds. In

comparison, Downwinders have received $366 million for personal injury awards as

part of the Radiation Exposure Compensation Act (RECA) and Congress has made

supplemental appropriations when additional funds were needed. RECA requires

the Attorney General to ensure that a claim is paid within 6 weeks of approval. In

the RMI, 45% of claimants have died without receiving their full claims because of

the pro-rationing requirement. The geographic area defined by Congress as exposed to radiation from the Nevada tests and eligible to participate in the Downwinders program is significantly larger

than the area Congress recognizes as exposed in the Marshall Islands. Although the

total yields in Nevada were 1/100th the yields of the Marshall Islands, the exposed

area in the Marshall Islands is limited to just 4 atolls. A map that superimposes

the entire Marshall Islands over the U.S. Downwinders affected area underscores

the discrepancies in geographic areas considered exposed (Map II). In April 2005,

the National Academy of Science (NAS) recommended expanding eligibility for the

Downwinders beyond its current geographic boundaries, and called on Congress to

move quickly to provide assistance to Downwinders suffering from radiogenic conditions. In addition to ensuring that the measures taken under Section 177 of the

Compact be sustained to guarantee that RMI citizens receive the same level of justice as U.S. citizens affected by the mainland tests, if the criteria for defining the

universe of affected people and lands in the U.S. changes, the same criteria should

be applied in the RMI.

Conclusion

In conclusion, Chairmen, Members, Ladies and Gentlemen, we are sitting here talking about numbers, policies, and science, yet for all of us in the Marshall

Islands, the U.S. Nuclear Weapons Testing Program is a profoundly human experience—we experience the broad-reaching effects of the testing program on the most

intimate and personal levels: from our home islands that we can no longer inhabit,

to the sickness and death of our friends and family. Again, to put this into human terms, the National Cancer Institute estimates hundreds of cancers related to the U.S. Nuclear Weapons Testing Program have yet

to appear. This means that hundreds more of the people who we talk to, sleep next

to, eat with, love, and work with will endure tremendous physical hardships and

possible death. We can do our best to prepare our health system to deal with this

burden, but we can never remedy the human and emotional toll that this takes on

us as individuals, families, communities and a nation. A member of my staff recently received an email from a member of the Rongelap community expressing

these sentiments:

The very first time I heard about a person dying of cancer was a friend of mine who was born on Wotje and grew up on Ebeye named Mrs. Darlene

Keju-Johnson. Ever since then, so many people whom I loved and knew

died of cancer.

Last November, I went to Ebeye on Kwajalein Atoll for a Rongelap fu- neral. One of the deceased was my brother-in-law, a member of the control

group, but when I got to the burial I saw that there were many, many people and another coffin. The other one was a young girl who grew up on

Ebeye and was ready to graduate from 12th grade. She died of cancer of

the brain. Man, I just cried!

In December, I went back to the same burial place on Ebeye, two people

have died, one was my aunt who was a DOE control subject and one was

a Bravo survivor who died of cancer and God knows what else for we will

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never know because we don’t have the facility, equipment, doctors or medicine.

August before, my uncle, a Bravo survivor, died of numerous cancers as well as his wife. Most of their children were affected by radiation; the eldest

son was the first one to go at 18 years of age and the living ones are just

struggling to hold on, and the grandchildren are sick, too. My aunt died of

breast cancer and my uncle died of lung cancer and my father died of cancer.Today as we speak, a niece of mine is in intensive care diagnosed with cancer who won’t be alive for long as I was informed and the list go on and

on. It has been over 50 years since history linked our two great nations. We have stood together in times of peace and times of conflict. At the conclusion of World

War II, President Truman told the U.S. people that America was now ‘‘the most

powerful nation in the world—the most powerful nation, perhaps, in all history.’’ He

went on to say that ‘‘a society of self-governing men is more powerful, more enduring, more creative than any kind of society, however disciplined, however centralized.’’ We look to Congress to tap into the creative talents of your great nation to

help us address the lingering needs of your friends and allies who, as this Committee’s own resolution notes:

Whereas the Bravo test and the 12 year nuclear testing program has been

the defining experience of the modern era for the people of the Marshall

Islands, and these momentous events created a common bond between the

people of the Marshall Islands and the United States military and civilian

personnel who shared hardships and suffering with the people of the Marshall Islands during the testing program, as well as the United States citizens in areas affected by the mainland testing programs and weapons production industry (H. Con. Res. 364). Kommol tata

July 18, 2005

The Honorable Richard W. Pombo

Chairman

Committee on Resources

U.S. House of Representatives

Washington, D.C. 20515

Dear Chairman Pombo:

Thank you for your letter of June 28, 2005 asking me to clarify two issues related

to the hearing you convened in May. Below are my responses to your questions.

Please let me know if I can provide any additional information about these or other

topics.

I am also sending you a copy of my statement to the Senate Energy and Natural

Resources Committee as I view the Senate hearing as an opportunity to build on

the solid record that you established during your hearing. I look forward to talking

with you and your staff in the near future about working together to develop legislation that can address the radiological needs in the RMI identified at your hearing.

WITH BEST REGARDS,

GERALD M. ZACKIOS

RMI MINISTER OF FOREIGN AFFAIRS

Question 1: Has the RMI Government ever formally approached past Administrations since 1986 regarding changes or concerns they had regarding radiological cleanup standards in their islands?

Yes, every year since I can remember, the RMI has raised the subject of safety

standards with the Department of Energy (DOE) at is annual meetings with the

RMI. At these meetings, the RMI has repeatedly expressed concern about DOE’s dividing of populations into groups of ‘‘exposed’’ versus ‘‘unexposed’’ as we have long

disputed the U.S. government’s assertions that only a very narrowly defined area

of the Marshallese public is as risk because of radiation exposure.

In 1992, the U.S. government proposed a 100 mrem standard for environmental

monitoring and clean-up on Rongelap Atoll. We accepted this standard at the time

because it was proposed by the U.S. government, and because it was certainly a reduction from the 500 mrem standard that is the basis of the 1978 Survey that inVerDate 11-MAY-2000 13:32 Oct 24, 2005 Jkt 000000 PO 00000 Frm 00063 Fmt 6633 Sfmt 6621 J:\DOCS\21448.TXT HRESOUR1 PsN: HRESOUR1
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forms the 177 Agreement. In 1996, no standard was included in the Rongelap Resettlement Agreement because we recognized that standards were changing and we

couldn’t come to agreement with the U.S. about the standard to apply. Clean-up for

Rongelap’s resettlement efforts are now based on 15 mrems because this is the policy of the Rongelap Local Government. In 1998, the Nuclear Claims Tribunal adopted the U.S. EPA’s clean-up standard

of 15 mrem. Information about the adoption of this standard was included in Tribunal reports that the Executive Branch received, but never commented on. Private

property damage claims before the Tribunal employing this standard were a matter

of public record, and monitored closely by the U.S. State Department in Majuro, but

again, there was no comment from the Executive Branch about the standard. DOE

was also informed about the RMI’s position regarding the lower standard; DOE always listened, but never commented on our presentations. Two years after the adoption of the 15 mrem standard by the Tribunal, the RMI government submitted its Changed Circumstances Petition to Congress. The Clinton

Administration declined to comment, and the Bush Administration responded 4

years later saying that it does not concur with the RMI’s position regarding an environmental safety standard. In my opinion, the RMI has repeatedly tried to engage the Executive Branch in discussions about environmental safety in the RMI, but never to any avail.

Question 2: The NCI study of radiation-related illnesses mentioned the fact

that exposure to fallout could result in a 9% increase in the total number of cancers expected, including a large increase seen in those who

were very young during U.S. nuclear testing. Is the RMI Government

planning the use of their Compact health funds to address the potential

costs associated with this increase that may be attributable to nuclear

testing?

During the recent negotiations to extend economic assistance under the Compact

of Free Association, the RMI attempted to present proposals to take into account

problems resulting from the U.S. nuclear weapons testing program. However, the

Executive Branch refused to discuss even limited aspect of the Changed Circumstances Petition. The results of the RMI’s efforts in this respect are reflected

in U.S. Compact Negotiator Al Short’s letter to me dated March 27, 2002. The U.S.

Compact negotiators would not discuss anything related to the consequences of the

U.S. nuclear weapons testing program in the Marshall Islands, insisting instead

that these matters would be taken up by Congress pursuant to the RMI’s Changed

Circumstances Petition. Consequently, provisions of Title Two of the Compact, as

amended, and the Fiscal Procedures Agreement with respect to the Health Sector

Grant make no mention of using these funds to address the increase in cancers and

other illnesses attributable to nuclear testing.

During the hearing, U.S. Government witnesses testified that the RMI could allocate part of its Health Sector Grant to deal with the healthcare consequences of the

Nuclear Testing Program. I was surprised to hear this in view of the U.S. position

during the actual Compact negotiations. I would point out, moreover, that current

healthcare funds available under the Compact are woefully inadequate to address

the increased healthcare burdens resulting from the nuclear testing program. While

we have increased funding for healthcare, including from the amended Compact of

Free Association funding (and as represented in our medium term budget over the

next few years and accompanying health sector portfolio which have been presented

to the U.S. within the context of the U.S.-RMI Joint Economic Management and Financial Accountability Committee), these increased investments have gone to improve basic health care and certain priority preventative efforts. For instance, our

healthcare budget has increased to about $15 million in FY05—an increase of about

22 percent from previous years. This increased investment is because we have identified the health sector—along with education—as our priority sectors over the next

several years. However, even with the amended Compact funding and expected increased investments of our own domestic revenues we will not be able to further

increase funds because of our income constraints. We simply do not have the funds

or expertise to respond effectively to the additional healthcare burdens related to

nuclear testing.

If the RMI were to allocate funding from the Compact to address these costs, it

would result in a significant decline in overall healthcare resources for the nation,

such as in the areas of basic healthcare for children, neo-natal care. We would also

have to reduce funding in our other priority areas such as education and the capital

investments we are targeting to the education and health sectors. We wish we could

increase investments on our own to provide these necessary healthcare services.

However, given our own domestic revenue generation constraints and the decline of

59

the amended Compact sector grants, our health care funding will remain at about

$16 million annually over the next several years. As a comparison, the Commonwealth of the Northern Marianas is struggling with an annual health budget of $45

million. While the populations of these two Pacific countries are similar with approximately 55,000 people each, the CNMI does not have radiological healthcare

issues to contend with.

The bottom line is that the health care capacity of the Marshall Islands is already stretched. We are investing all that we can in healthcare in order to better serve

our people. However, what resources we have are inadequate to meet the needs of

those suffering from cancer and other illnesses attributable to the nuclear testing.

The CHAIRMAN. Thank you, sir. And now I would like to recognize Judge James Plasman, representing the Nuclear Claims Tribunal.

STATEMENT OF THE HON. JUDGE JAMES J. PLASMAN,

CHAIRMAN, MARSHALL ISLANDS NUCLEAR CLAIMS TRIBUNAL

Judge PLASMAN. Thank you, Mr. Chairman, Chairman Leach, distinguished Members. The Nuclear Claims Tribunal was created pursuant to the Section 177 Agreement and was given the responsibility for determining all claims of the people of the Marshall Islands which are

related to the nuclear testing program. The tribunal has dealt with

property claims on a class action adjudicatory basis, hearing testimony from expert witnesses for claimants and for the defender of

the fund. The four atolls have prepared a statement on these

claims in the Congressional Research Service Report, and former

Attorney General Thornburg’s report likewise deals with these

claims.

Personal injury claims have been addressed through an adminis- trative structure based on U.S. programs designed to compensate

radiation-related injuries to U.S. citizens. In consideration of its

personal injury program the tribunal has had to deal with the

evolving understanding of both the health effects of exposure to radiation and the extent of fallout in the Marshall Islands.

At the time of the Section 177 Agreement, the understanding of radiation-related health effects was represented in the 1980 report

of the National Academy of Sciences Committee on the Biological

Effects of Ionizing Radiation called BEIR III. The BEIR V report

of that committee, issued in 1990, found cancer risks from radiation were 3 to 4 times higher than had been presented in the committee’s 1980 report.

A 1982 Department of Energy report on the Effects of Radiation

in the Marshall Islands estimated that in the 30 years following

the report, two fatal cancers would result from radiation received

in that time. Most recently, the 2004 NCI study estimated a radiation-related excess of 532 cancers among the 14,000 people living

throughout the Marshall Islands during the testing period. Of

these, it was estimated 289 will occur after 2003.

At the time of the agreement, knowledge of the effects of radiation on the thyroid gland were still developing. Over time it has

been shown that the thyroid is significantly affected by radiation

exposure, particularly by those radioactive iodines with short half

lives.

In 1987, a thyroid expert from the National Institute of Health,

in a presentation at an international conference noted, ‘‘The inforVerDate 11-MAY-2000 13:32 Oct 24, 2005 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6602 J:\DOCS\21448.TXT HRESOUR1 PsN: HRESOUR1
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mation collected on the Marshallese people constitutes an important body of data relating to the late effects of radiation absorbed

by the thyroid gland. It shows convincingly that the induction of

thyroid nodules and thyroid cancer is a major cause of late morbidity.’’

Also in 1987, an article in the Journal of the American Medical

Association documented a high prevalence of thyroid nodules in

populations at 12 atolls that were thought not to have received significant fallout from BRAVO, and related this thyroid disease to radiation exposure from the tests.

This information indicated to the tribunal that there were significant exposures throughout the Marshall Islands beyond simply the

four northern atolls.

This understanding was strengthened by the 1994 release of a

previously classified 1955 report by the AEC that showed significant exposures throughout the Marshall Islands from the Castle

test series. The 2004 NCI report estimate of 532 excess cancers included 297 from atolls other than the four atolls.

The tribunal, in establishing its personal injury program found

guidance in relevant U.S. programs, the Atomic Veterans and Nevada Downwinders both are compensated under statutorily created

programs which do not require proof of individual radiation doses

but rely upon a presumption of causation if they develop defined

radiogenic diseases. Even the recently adopted program for Department of Energy employees provides for a presumptive approach in

the case of workers for whom there was inadequate information to

develop a dose reconstruction and for whom there was a reasonable

likelihood of harm.

In examining the Downwinders’ compensation program, the tribunal found compelling comparisons to justify the presumptive approach in the Marshall Islands. Like the Downwinders, the Marshall Islanders were unknowing victims of the fallout of atomic

testing. Like the Downwinders, the Marshall Islanders have insufficient information to reconstruct individual doses. Although the

Marshall Islands is geographically somewhat larger than the area

covered by the Downwinders program, the total yield of the nuclear

test in the Marshall Islands was almost 100 times greater than

that in Nevada.

The comparison of estimated doses for Downwinders and Marshall Islanders indicates that the atoll in the Marshall Islands with

the lowest average dose was comparable to the average dose of the

Downwinders who lived in the six counties closest to the Nevada

test site.

Exposures during the testing program have had and will continue to have an impact on the health of the Marshallese people.

The personal injury program adopted by the Nuclear Claims Tribunal is reasonable and based on U.S. precedent. The $150 million

Nuclear Claims Fund is almost exhausted. The U.S. nuclear legacy

is an incomplete story as there remains significant past and future

uncompensated damages that were not and could not be known at

the time of the Section 177 Agreement and will not be addressed

without additional consideration by the United States.

Thank you, Mr. Chairman.

[The prepared statement of Judge Plasman follows:]

61

Statement of James H. Plasman, Chairman,

Nuclear Claims Tribunal, Republic of the Marshall Islands

Jurisdiction of the Nuclear Claims Tribunal

The Section 177 Agreement attempts to resolve the outstanding claims of the peo- ple of the Marshall Islands for damages resulting from the Nuclear Testing Program

conducted by the U.S. in the Marshall Islands from 1946 to 1958. The Section 177

Agreement states that it is the full settlement of all claims of the people of the Marshall Islands arising out of the Nuclear Testing Program. At the same time, the

agreement includes important elements that provide for an ongoing review of its

terms to insure the interests of both parties are satisfied. Because there was not

a full understanding of the consequences of the testing program at the time of the

agreement, the parties agreed to the establishment of an independent body, the

Nuclear Claims Tribunal, to assess and determine claims based on or arising out

of the testing program. As mutually agreed between the Governments of the United

States and the Marshall Islands, the jurisdiction of the Tribunal is ‘‘to render final

determination upon all claims past, present and future, of the Government, citizens

and nationals of the Marshall Islands which are based on, arise out of, or are in

any way related to the Nuclear Testing Program...’’ Notably, this jurisdiction is not

limited to claims from the northernmost atolls where the testing occurred, but covers ‘‘all claims.’’

In addition, as mutually agreed between the two governments, the Tribunal’s jurisdiction is not artificially limited by an amount which the Tribunal may award in

rendering ‘‘final determinations’’ of claims resulting from the Nuclear Testing Program. Article II, Section 6(c) provides for ‘‘$45.75 million to be made available to

the Claims Tribunal for whole or partial payment of monetary awards made by the

Claims Tribunal pursuant to Article IV of this Agreement.’’ Further, Article II, Section 7(c) provides that ‘‘Commencing on the fifteenth anniversary of the effective

date of this Agreement, not less than 75 percent of Annual Proceeds shall be available for disbursement in whole or partial payment of monetary awards made by the

Claims Tribunal in subsequent years.’’ Clearly there is provision made for awards

above and beyond the $45.75 million, and further, there is no limitation on the

amount which the Tribunal may award. The Tribunal’s jurisdiction is to render final

determination on all claims arising out the testing program. It is not limited by any

cap.

At the time the agreement was negotiated and came into effect, both the full effects of radiation on the health of the Marshallese people and the geographic extent

of radioactive fallout and residual contamination were not understood. Much has

been learned about the health consequences of radioactive fallout during the 22

years since the Section 177 Agreement became effective.

The Effects and Levels of Radiation in the Marshall Islands

The 177 Agreement states (in Article VIII) that:

‘‘The Government of the United States has concluded that:

(a) The Northern Marshall Islands Radiological Survey and related environmental studies conducted by the Government of the United States represent

the best effort of that Government accurately to evaluate and describe radiological conditions in the Marshall Islands; and

(b) The Northern Marshall Islands Radiological survey and related environmental

studies have been made available to the Government of the Marshall Islands

and can be used for the evaluation of the food chain and environment and estimating radiation-related health consequences of residing in the Northern

Marshall Islands after 1978.’’

One of the ways in which the results of the Northern Marshall Islands Radiological survey was made available to people in the Marshall Islands was through

a bilingual (Marshallese/English) book published by the United States Department

of Energy in November 1982 and titled ‘‘The Meaning of Radiation for Those Atolls

in the Northern Part of the Marshall Islands That Were Surveyed in 1978.’’ The Introduction of that book states that ‘‘This book explains the results of the 1978 measurements for the following atolls: Rongelap, Utrik, Taka, Bikar, Rongrik, Ailinginae,

Likiep, Ailuk, Jemo, Mejit, Wotho and Agelong.’’ It also notes that ‘‘The reason scientists chose these atolls to study was because it is possible they were in the path

the winds blew during some of the tests, and also because some information had

been achieved previously about the radioactive atoms on some of these atolls.’’

The book describes radioactive fallout, the ways people can ‘‘receive radiation,’’

and the ways that radiation could cause harm. It also provides some information

specific to each individual atoll, including scientists’ estimates as to ‘‘the largest

amount of radiation a person might receive in one year from radioactive atoms that

62

came from the U.S. bomb tests’’ and ‘‘the highest average amount of radiation people might receive in the coming 30 years.’’ The book gives scientists’ estimates,

based on a certain number of people who might live and eat local food only from

a specific atoll or island, as to the number of people who ‘‘may die from cancers

caused by things other than radiation from the atomic bomb tests’’ (i.e., baseline

cancers) and the number that ‘‘may die in the future from cancers caused by radiation received in the coming 30 years from the atomic bomb tests’’ (i.e., excess

cancers).

The numbers presented in the book by atoll are set out in Attachment 1.

Thus, based on the ‘‘best effort’’ estimates presented in this book, the negotiators of the Section 177 Agreement could expect that within an assumed population of

2,473 people living and eating local food only from these 12 atolls, an upper limit

total of two cancer deaths would result from radiation received in the coming 30

years from the atomic bomb tests. Radiation exposures received from living in and eating local food from an atoll during the 1980s and after would be considered ‘‘chronic’’ in nature. As such, they

were routinely dismissed by U.S. officials, both during and after the settlement negotiations, as having no consequence. For example, even people who lived and ate

local food at Rongelap and Utrik for 30 or more years beginning in the 1950s were

referred to officially as ‘‘unexposed’’ if they had not been on Rongelap or Utrik at

the time of the BRAVO thermonuclear test on March 1, 1954. This practice continued despite the constantly accumulating chronic exposures that they were receiving

as a result of living in and eating food from an environment characterized by medical experts under contract to the Atomic Energy Commission as containing levels

of radioactive contamination ‘‘higher than those found in other inhabited locations

in the world.’’ [BNL March 1957 Medical Survey of Rongelap and Utrik People

Three Years After Exposure to Radioactive Fallout]

In fact, however, the only people officially recognized by the U.S. as ‘‘exposed’’ were those who had been physically present on Rongelap, Ailinginae or Utrik when

BRAVO was detonated. The basis for the distinction was the ‘‘acute’’ doses—whether

external or internal in nature—that they had received. It is generally agreed that

for most people living in the Marshall Islands during the testing period, ‘‘acute’’

doses are many times higher than the chronic doses, accounting for more than 90%

of the total dose to an individual or population.

The effects of such acute exposures, even at relatively low levels, can take decades to manifest. However, the 1982 DOE book gives no estimates as to the number of

cancers or other illnesses that may be attributed to acute radiation exposures received during the testing period at any of the atolls in the Marshall Islands. After the Section 177 Agreement came into effect, new scientific understanding of radiation health risks continued to develop and emerge. The 1990 report of the

National Academy of Sciences Committee on the Biological Effects of Ionizing Radiation (BEIR V) documents that there are ‘‘Well demonstrated late effects’’ of lowdose radiation exposure which ‘‘include the induction of cancer’’ and that new data

developed since the completion of the 1980 BEIR III report show that ‘‘The cancer

risk estimates derived with the preferred models used in this report are about 3

times larger for solid cancers...and 4 times larger for leukemia than the risk estimates presented in the BEIR III report.’’

In 1994, a study conducted by the Radiation Effects Research Foundation presented for the first time comprehensive data on the incidence of solid cancer among

A-bomb survivors, expanding the knowledge of the range of health effects of exposure to radiation. (Cancer Incidence in Atomic Bomb Survivors, Radiation Research

Society.)

Also, during the 1990s, a new understanding developed regarding the level and

extent of the exposures in the Marshall Islands. Reports such as Radioactive Debris

from Operation Castle, Islands of the Mid-Pacific, (Breslin, A. J.; Cassidy, M. E.;

New York: U.S. Atomic Energy Commission, New York Operations Office, Health

and Safety Laboratory; NYO-4623; 1955) declassified in 1994 from its previously Secret status, documents significant doses at virtually every atoll during the 1954 series of tests. A comparison study provided to staff members of this Committee in

April 2004 documents that even the atoll with lowest average individual external

radiation dose in the Marshall Islands exceeded the average dose to the populations

living in the six counties closest to the Nevada Test Site during the respective periods of atmospheric testing.

Indeed, the full impact of exposures throughout the Marshall Islands has yet to

be determined. A new measure of the anticipated late effects of those exposures was

made available to the Marshall Islands just last month with the release of a recent

study by the National Cancer Institute. (Estimation of the Baseline Number of Cancers Among Marshallese and the Number of Cancers Attributable to Exposure to

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Fallout from Nuclear Weapons Testing Conducted in the Marshall Islands, Prepared

for Senate Committee on Energy and Natural Resources, September 2004.) While

acknowledging (at page 2) that ‘‘To date, there has not been an epidemiologic study

of the Marshallese to estimate the total numbers of cancers and other serious illnesses resulting from exposure to radioactive fallout,’’ the NCI states that ‘‘It is possible, however, to develop estimates of the number of baseline cancers and radiation

related cancers based on estimated doses.’’

The NCI study estimates that, primarily as a result of past exposures, 532 radi- ation related cancers may be expected to occur among the 1954 Marshall Islands

population of 13,940.

Included in those 532 excess cancers are 297 estimated to occur among people from atolls other than the four specifically provided for in the Section 177 Agreement (per Table 3 at page 20 of the study). NCI estimates 70 radiation related cancers among people who lived in the southern atolls that were not included in the

1978 radiological survey, as well as an unspecified number among people who lived

at Wotje (indicated as an ‘‘Other northern atoll’’ in Table 3 but not included in the

1978 survey). Tables 2a and 2b of the NCI study indicate that of the 532 expected radiation re- lated cancers, only 243 are estimated to have occurred during the 1946-2003 time

period while 289 are estimated to occur in 2004 and later.

The estimated 532 excess cancers, attributable to radiation created by the nuclear

testing program, are in addition to an estimated 5,600 cancers ‘‘expected to occur

in the absence of exposure to radioactive fallout from tests conducted in the Marshall Islands’’ (page 14).

Radiogenic Illnesses Other Than Cancer

Although NCI says that it is possible to develop estimates of the number of cancers, it acknowledges that ‘‘estimation of diseases other than cancer is more problematic.’’ Accordingly, the study does not address other non-malignant health conditions which are known to result from exposure to radiation. The thyroid gland is

especially sensitive to radiation, particularly radioactive iodine, which was a large

component of the fallout which spread over the Marshall Islands. It is also a difficult radionuclide to gauge because of the short half lives of its various isotopes.

Even in small amounts, radioactive iodine can cause extensive damage in children.

While there has never been a systematic medical surveillance program of the entire Marshall Islands, a high prevalence of thyroid disease was documented in populations at 12 atolls that were thought not to have received significant fallout from

BRAVO. (Hamilton, T. E.; van Belle, G.; LoGerfo, J. P.; ‘‘Thyroid Neoplasia in Marshall Islanders Exposed to Nuclear Fallout,’’ Journal of the American Medical Association, 258:629-636; 1987) Eight of those twelve atolls (Wotje, Maloelap, Lae, Ujae,

Kwajalein, Jaluit, Ebon and Mili) were not included in the 1978 northern islands

survey, leading the investigators to state that ‘‘These findings suggest that the geographic extent of radioiodine exposure from the 1954 BRAVO test was much broader

than previously assumed.’’

The former Chief of the Clinical Epidemiology Branch of the National Cancer Institute called those findings ‘‘astonishing’’ and, in a paper prepared for the Tribunal,

stated that ‘‘these tumors may be regarded in effect as a biological dosimeter that

indicates unmeasured fallout of thyroid-damaging radioiodines in a similar mixture

to those on Rongelap.’’ [Radiation Effects Among the Marshallese, Robert W. Miller,

MD, December 15, 1989].

In 1998, the CDC estimated that approximately 6.3 billion curies of Iodine-131

had been released to the atmosphere as a result of nuclear testing in the Marshall

Islands. That amount is 42 times the 150 million curies released from events at the

Nevada Test Site, 157 times the 40 million curies released during the Chernobyl accident, and more than 8,500 times the 739,000 curies released as a result of Hanford

operations.

A subsequent calculation of the amount of I-131 released by the nuclear tests in

the Marshall Islands notes that the CDC value of 6.3 billion curies ‘‘appears too low

by at least 32% and possibly by as much as 42%.’’ (Simon, Steven; ‘‘To Mr. Oscar

deBrum, Information update and comment,’’ August 23, 1999 personal e-mail).

Based on Dr. Simon’s calculations, ‘‘A better estimate is between 7.9 and 8.5 billion

curies. Thus, the release of I-131 in the Marshalls was closer to 53 times (or as high

as 57 times) greater than that released at the NTS rather than 42 times as stated.’’

The 1987 Hamilton study noted mean latency periods for thyroid nodules of 13

years for Rongelap children and 25 years for Utrik children and stated that ‘‘Since

latent periods at least as long as 34 years are thought to exist in other populations

exposed to thyroid irradiation, it will be necessary to continue close follow-up of this

population.’’

64

Unfortunately, recognition of the effects of the exposures on the thyroid was greatly delayed. As recalled in late 1994 by Dr. Victor Bond, a longtime member

of the BNL medical teams that routinely examined the people of Rongelap and

Utrik, ‘‘And quite frankly, I’m still a little embarrassed about the thyroid. [T]he

dogma at the time was that the thyroid was a radio-resistant organ.... [I]t turned

out they had...very large doses of iodine...to the thyroid.’’ [page 589 of Advisory Committee on Human Radiation Experiments Final Report dated October 1995]

Dr. Eugene Cronkite, another longtime member of the teams, noted in 1994 that ‘‘there was nothing in the medical literature...to predict that one would have a relatively high incidence of thyroid disorders.’’ [page 589 of Advisory Committee on

Human Radiation Experiments Final Report dated October 1995]

‘‘Nine years after the accident, a 12-year-old Rongelap girl was found to have de- veloped a nodule in her thyroid gland. Within the next 3 years, 15 of the 22

Rongelap people who had been under age 10 years at the time of exposure had developed thyroid lesions. At that time, the first thyroid nodule in an exposed

Rongelap adult appeared and in 1969, 15 years after the accident, the first thyroid

nodule appeared among the exposed people of Utirik. It has become evident that

thyroid abnormalities—which include benign and malignant thyroid tumors and

thyroid failure—are the major late effects of the radiation received by the exposed

Marshallese.’’ [Radiation effects in the Marshall Islands; Jacob Robbins, William H.

Adams; Radiation and the Thyroid: Proceedings of the 27th Annual Meeting of the

Japanese Nuclear Medicine Society, Nagasaki, Japan October 1-3, 1987; published

by Excerpta Medica 1989, page 16] The same paper reports (beginning at page 16) that ‘‘The first thyroid abnormality to appear in the exposed Marshallese people was radiation-induced thyroid atrophy,

resulting in profound growth failure in two boys. However, the etiology was not recognized until after thyroid nodules began to appear. The reason was that the diagnosis of hypothyroidism, at that time based on PBI measurement, was obscured by

an elevated iodoprotein level, later found to be prevalent in the Marshall Islands

(2, 3, 11). Subsequent surveys by TSH measurement and TSH response to TRH, in

addition to routine measurement of thyroid hormone levels, revealed 12 cases of

subclinical thyroid hypofunction (12) that could not be attributed to prior thyroid

surgery. A high proportion of the Rongelap people who were aged under 10 years

when exposed had the most marked TSH elevations, which probably favored the development of thyroid nodules (4). Although the finding of hypothyroidism was surprising at first, reevaluation of the thyroid absorbed radiation dose by Lessard et

al (1) now shows that the exposure was in a range known to be capable of causing

thyroid failure.’’ And (beginning at page 21): ‘‘Relevance of the Marshall Islands Experience -- The information collected on the Marshallese people constitutes an important body of

data relating to the late effects of radiation absorbed by the thyroid gland. It shows

convincingly that the induction of thyroid nodules and thyroid cancer is a major

cause of late morbidity. Although it give us some idea of the risk coefficient for internal radiation, the magnitude is uncertain owing to the lack of precise data about

radionuclide intake, and because of the small population involved.’’

‘‘From the Marshallese experience it is clear that, in any future accident involving

radioiodines, the use of oral stable iodine to suppress radioiodine uptake by the thyroid, particularly in children and pregnant women, should be considered.’’ From

‘‘Late Radiation Effects in Marshall Islanders Exposed to Fallout 28 Years Ago,’’ by

Robert A. Conard, M.D., in Radiation Carcinogenesis: Epidemiology and Biological

Significance, Raven Press, NY, 1984, p. 67.

Benign thyroid conditions account for more than 1,000 of the 2,097 personal injury awards made by the Nuclear Claims Tribunal. A 1985 study estimated the rate

of radiation induced thyroid nodules would be two to three times the rate of thyroid

cancer (H. Maxon, S. Thomas, C. Buncher, S. Book and V. Hertzberg. Thyroid effects. In: Health Effects Model for Nuclear Power Plant Accident Consequence Analysis. Part II: Scientific Basis for Health Effects Models, pp. 181-226 (J.S. Evans,

D.W. Moeller and D.W. Cooper, eds.) NUREG/CR-4214, U.S. Nuclear Regulatory

Commission, Washington, D.C., 1985) The NCI study estimates an excess 262 radiation induced thyroid cancers, suggesting that 524 to 786 radiation induced thyroid

nodules would occur.

Inadequate medical monitoring has prevented early treatment in many cases and

has also precluded the diagnosis of many diseases. Nevertheless, it became increasingly apparent that the health consequences of the U.S. nuclear weapons testing

program in the Marshall Islands have been much greater than could have been foreseen in the 1980s.

These studies indicate that there is a relationship between the level of exposure

and latency period. It took nine years after BRAVO to recognize the thyroid effects

65

in Rongelap. The scientific understanding of the full effects of radiation on the thyroid and other health effects continues to develop.

A Presumptive Approach

The Tribunal, in determining personal injury damages resulting from the testing program, found guidance in similar U.S. programs. At the time of consideration of

the Tribunal personal injury program, the Veterans Administration had two programs for radiation affected veterans. The initial program utilized by the VA was

a non-presumptive program that utilized a form of ‘‘probability of causation’’ based

in part on the radiation dose received by the veteran to determine service-connected

disability. In 1988, a statutory program was enacted which granted a presumption

of service connection for veterans who developed cancer from a list of statutorily determined radiogenic conditions. Later, in 1990, the Radiation Exposure Compensation Act was enacted, which provided compensation to various groups of radiation exposure victims in the U.S., including the ‘‘Downwinders,’’—individuals who resided during the testing period in

certain counties downwind of the nuclear tests in Nevada. For these Downwinders

who developed a condition on the statutory list of radiogenic conditions, it was presumed their condition resulted from the nuclear tests and they were eligible for an

award of $50,000, or $75,000 if they were ‘‘on-site.’’ ‘‘ The Tribunal ascertained early on that there was insufficient evidence of indi- vidual doses to provide a basis for application of a ‘‘probability of causation’’—analysis and, based upon the U.S. VA and Downwinder precedent, adopted a presumptive program that required residence in the Marshall Islands and development of

a radiogenic disease determined by regulation. In examining the Downwinders compensation program, the Tribunal found compelling comparisons to justify the presumptive approach. In both cases, the affected populations were unknowing victims

of the fallout from the testing program. In both cases, there was little effort made

to monitor exposures to the population at large. Although the Marshall Islands was

geographically somewhat larger than the area covered by the Downwinders program, the total yield of the nuclear tests in the Marshall Islands was almost 100

times greater than that in Nevada. A comparison of estimated doses for

Downwinders and Marshall Islanders indicates that the atoll in the Marshall

Islands with the lowest average dose was comparable to the average dose of the

Downwinders.

The most recently adopted compensatory program for radiation related injuries in

the U.S. is the Energy Employee Occupational Injury Compensation Program. This

program, designed to compensate Department of Energy workers exposed to radiation in weapons development facilities, adopted a probability of causation approach

which awarded compensation to workers who were able to show that it was probable

their medical condition was the result of their exposure to radiation. However, even

in this context, where there was careful monitoring of worker exposures, there were

special provisions made for workers for whom there was inadequate information to

develop a dose reconstruction and for whom there was a reasonable likelihood of

harm. Such workers may be recognized as a ‘‘Special Exposure Cohort’’—for whom

causation would be presumed without reference to level of exposure, if they developed a listed radiogenic condition.

The reality is that a radiation induced cancer has no specific indicator to separate

it from cancers generally. The U.S. has recognized that reality when there is insufficient information to provide a probability of causation analysis of the origin of a radiation related condition, it is appropriate to adopt a presumptive approach compensating all radiogenic cancers where there is a reasonable possibility of harm, and

accept the likelihood that there will be an element of over-inclusiveness in compensation. The NCT has adopted that philosophy as well. The over-inclusiveness of

such compensation must be accepted as a necessary part of compensation for such

injuries. The NCI study clearly indicates there are injuries which have yet to be

compensated. Failure to compensate those injuries indicates that the level of compensation for personal injuries is manifestly inadequate.

Another element of our compensatory programs is the level of compensation for

awards. The Tribunal has adopted a scaled approach, with awards ranging from

$12,500 for certain benign conditions, to $125,000 for the most serious cancers,

while the U.S. programs tend to be lump sum awards, ranging from $50,000 for

Downwinders ($75,000 if ‘‘on-site’’) to $150,000 for Department of Energy employees.

It should be acknowledged that awards of this nature tend to be smaller than

awards in fully adjudicated legal actions. It could be argued that both U.S. and the

Tribunal programs significantly under compensate awardees. If, for instance, the

award levels were based on the value of a statistical life, as utilized by regulatory

agencies for cost-benefit analysis, the award levels would be much higher. For

66

instance, it has been reported in ‘‘Valuation of Human Health and Welfare Effects

of Criteria Pollutants’’—Appendix H, The Benefits and Costs of the Clean Air Act,

1990 to 2010, EPA, 1997) that while values differ from program to program, the

mean value of a statistical life for regulatory purposes is $4.8 million. Under such

a valuation, total compensation to date by the Tribunal for personal injuries, even

based solely on the NCI estimate of 532 cancers caused by radiation exposure from

the nuclear testing program, is far from adequate compensation for the injuries suffered by the people of the Marshall Islands.

Article IV, Section 3 of the Section 177 Agreement, entitled ‘‘Governing Law,’’—

directs that ‘‘In determining any legal issue, the Claims Tribunal may have reference to the laws of the Marshall Islands, including traditional law, to international law and, in the absence of domestic or international law, to the laws of the

United States.’’ ‘‘

The Tribunal’s approach to compensating personal injuries, as part of its responsibility to determine all claims arising out of the Nuclear Testing Program is a reasonable one, firmly based on the U.S. experience in addressing radiation related injury. The use of a presumption of causation rather than a probability of causation

analysis is reasonable in light of the absence of individual exposure information, as

is done in similar U.S. programs. The extension of the presumption of exposure

throughout the nation is reasonable in light of the evidence of exposure outside the

Four Atolls, evidence which was not known at the effective date of the Section 177

Agreement and which has been reinforced most recently the by National Cancer Institute report on cancer in the Marshall Islands.

Determination of Property Claims

The Nuclear Claims Tribunal has approached claims involving damage to property as opposed to personal injury. Unlike the administrative scheme created by the

Tribunal to address personal injury claims, property claims have been dealt with on

an adjudicatory basis to date by consolidating the various individual property claims

within each atoll and addressing these claims in the form of a class action. The Tribunal has heard testimony from expert witnesses on behalf of claimants as well as

from the Defender of the Fund in reaching its decisions.

Although it would be inappropriate to comment on the Tribunal’s decisions, the

Four Atolls have submitted a statement on these issues and the Congressional Research Service Report and former Attorney General Thornburgh’s report likewise

deals with issues related to the property claims heard by the Tribunal.

In accordance with Article IV, Section 3 of the Section 177 Agreement, the Tribunal has referred to the laws of the United States in making its decisions in the

absence of applicable Marshall Islands law or international law. In fact, in virtually

every aspect of the Tribunal’s decisions in property claims, the Tribunal has substantially, if not totally relied on established U.S. laws and precedents.

Conclusion

The Tribunal was not limited to a specific sum in determining damages under the

Section 177 Agreement, but was charged with making a final determination of all

claims, past, present and future based on, arising out of or in any way related to

the Nuclear Testing Program. The level of these damages was not known and could

not have been known at the time the Section 177 Agreement came into effect. Based

upon the NCI study it is clear that exposures during the testing program have had

and will continue to have a long lasting impact on the health of the Marshallese

people. The U.S. has accepted responsibility for the damages from the Nuclear Testing Program under the terms of the Section 177 Agreement. Our understanding of

the extent of and effects of the radiation from the testing program continues to develop in ways that were not known and could not have been known at the effective

date of the Agreement. The determinations of the Tribunal have shown damages far

in excess of those contemplated under the Agreement, rendering it manifestly inadequate. More than $15 million is owed on personal injury awards and nearly $1.1

billion remains unpaid on property damage awards. Due in large part to the failure

of the Nuclear Claims fund to meet its expected performance goal, the value of the

Fund has eroded from the original $150 million provided by the U.S. under the 177

Agreement in late 1986 to less than $3.5 million today. The ‘‘Changed Circumstances’’—provisions of the Section 177 Agreement may not require the Congress to make additional funding available to the Marshallese victims of the testing

program, but it is clear that there remain significant unaddressed and uncompensated damages that were not and could not have been known at the time of the

Agreement.

67


I. 

2. 

Attachment 1 

Atoll by Atoll Analysis of Radiation Caused Cancer 

Atoll Number ofPeoQ1e No. Baseline Cancers No. of Excess Cancers 

Wotho 76 3 0.002 to 0.01 

Ai1inginae 100 5 0.03 to 0.2 

Ronge1ap 233 10 0.1 to 0.6 

Rongrik 100 5 0.03 to 0.2 

Likiep 487 20 0.03 to 0.2 

Taka 100 5 0.002 to 0.01 

Jemo 100 5 0.005 to 0.03 

Utrik 328 15 0.02 to 0.2 

Bikar 100 5 0.02 to 0.2 

Ai1uk 420 20 0.04 to 0.2 

Mejit 329 15 0.03 to 0.2 

Ujelang ---.lQQ --..2 0.002 to 0.01 

2,473 113 0.311 to 2.06 

Source: DOE, "The Meaning of Radiation for Those Atolls in the Northern Part of the Marshall 

Islands That Were Surveyed in 1978." (1982) 

Attachment 2 

Marshall Islands Nuclear Claims Trillunal 

Summary of Personallnjnry Awards by Medical Condition as of 5/11/05 

3. Cancer of the breast 

4. 

5. 

6. 

8. 

9. 

10. 

II. 

12. 

13. 

14. 

15. 

16. 

17. 

18. 

19. 

20. 

21. 

23. 

24. 

25. 

26. 

27. 

28. 

29. 

30. 

31. 

Cancer cfthe small intestine ............................................................................................ .. ...4 

is indicated) ......................................................... . . ....... 38 

a. 

b. 

a. 

b. 

32. Cancer of the rectum.... . ............. 20 

33. Cancer of the cecum... . . .................................................................................. 3 

34. Non-melanoma skin cancer in individuals who were diagnosed as having suffered 

beta bums under number 24 above. .... ... ..... ...... ... .... ..... .... .... .... . .. ..... ..... ... ...... . .................... I 

35. Cancer orthe bone.. . ........................................................................... 8 

36. 
68

Response to questions submitted for the record by Judge James Plasman, Nuclear Claims Tribunal

Question 1) It is generally accepted that the northern atolls in the RMI were most negatively affected by nuclear testing, yet the Tribunal has

allocated monies to citizens throughout the RMI, even without evidence

seen recently in the NCI study. Can you explain how the ‘‘presumption

of causation’’ approach you mention is based in past empirical studies

to support this system of awards?

Answer: In adopting a presumption of causation approach, the Tribunal pri- marily relied upon the precedent set by the Radiation-Exposed Veterans Compensation Act of 1988, Public Law 100-321, and the Radiation Exposure Compensation

Act (RECA) of 1990, Public Law 101-426. A primary source of scientific support for

these programs was the work of the National Academy of Sciences’ Committee on

the Biological Effects of Ionizing Radiation. Passage of the Veterans Compensation

Act in 1988 relied primarily upon the Committee’s third report, so-called BEIR III,

while RECA had the benefit of BEIR V. The BEIR Committee made heavy reference

to the work of the Radiation Effects Research Foundation (RERF), a bilateral undertaking of Japanese and American scientists to study the human health effects of the

atomic bombings of Hiroshima and Nagasaki. The Committee also used data from

other well-studied human populations exposed to radiation and referred to experimental studies on laboratory animals. Of particular importance, supporting the use

of a presumption of causation was the determination that there was no threshold

dose below which stochastic effects such as the development of cancer would not

occur. To the extent that these U.S. programs relied upon this body of work as the

scientific basis for compensation, by extension, the Tribunal made similar reliance. In adopting the Veterans Compensation Act and RECA, Congress was clearly mo- tivated by the perception that the government had wronged these victims of radiation exposure and that unreasonable standards of proof should not stand in the

way of compensating deserving individuals. Both of these compensatory systems rely upon a presumption of causation to de- termine eligibility for compensation. In both situations there was a desire on the

part of Congress to enact a system that was fair and reasonable, in light of the difficulties in proof of causation, but also that was efficient and cost effective. The use

of the presumption of causation addressed these concerns. In speaking against an

amendment to remove the immunity from law suit of governmental contractors involved in atomic weapons development (floor debate on NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 1991, Congressional Record -- August 03,

1990, p. S12117) Senator Charles Grassley of Iowa addressed these concerns:

The litigation solution works as a cruel hoax on the intended beneficiaries; it holds out the prospect for recovery, but frustrates the victims

by delay and expense. The Justice Department testified that radiation cases

take much longer to prepare and try than do most other types of litigation;

a typical case would take more than 5 years to resolve. Worse, simply repealing the Warner amendment will do nothing to solve the enormous proof

problems that plaintiffs will face, attempting to link their exposure to current disease.

A straight repeal of the Warner amendment may give some a warm feeling, and it will surely bring a smile to a lawyer’s face, but it will mean

scant little for those who need help the most.

Mr. President, these people don’t need lawyers, they need money to pay

their medical bills, to care for their sick or terminally ill.

If the Government is responsible, and the evidence strongly suggests that

it is, then let’s create a compensation system outside of the courts to provide relief—faster, without litigation expenses, without having to prove

fault, and without lengthy appeals.

In recent years, we have shown a preference for compensation over litigation, with enactment of the child vaccine compensation legislation, the Radiation -Exposed Veterans Compensation Act of 1988, and the Veterans

Dioxin and Radiation Exposure Act (Public Law 98-542) among others.

The motivation for a simple, reasonable administrative system was strengthened

by the perception that the government had not only harmed these victims of radiation exposure, but had done so in a significantly wrongful manner. In floor comments on the Radiation-Exposed Veterans Compensation Act 1988 (see Congressional Record—Senate for April 25, 1988, pgs. 4637-4641), Senator Cranston of California said, ‘‘Science has clearly proven that ionizing radiation can produce serious

adverse human health effects. While we do not have all the answers as to how much

radiation exposure is necessary before the various adverse effects appears, there is

69

a long list of cancers for which radiation has been established as a risk factor.’’ He

went on to say that ‘‘these veterans were not informed of the risks associated with

their participation in the nuclear weapons testing program, nor was their health

status systematically monitored thereafter. Accordingly, I strongly! believe that we

have the responsibility to ensure that these veterans finally are treated in an evenhanded and compassionate way with respect to their claims for VA benefits.’’ The Marshallese people were never informed of the risks associated with their

participation in the nuclear tests in the Pacific. Their health status was never systematically monitored until after the tragic events following the BRAVO test in

1954, and then, only a small fraction of the exposed population was covered. These

similarities between the U.S. affected populations and the Marshallese affected population provide compelling justification for following U.S. precedent in adopting a

presumption of causation.

The Tribunal provided an in-depth discussion of the reasons for believing the ex- tent of fallout in the Marshall Islands went beyond the four atolls identified in the

Section 177 Agreement, on March 18, 2005, in Majuro to two senior staff members

of United States Senate Committee on Energy and Natural Resources and to the

U.S. Ambassador to the Republic of the Marshall Islands. I am attaching a written

statement which restates the oral presentation made at that time. Although extensive reference is made to reference materials, I have not included them because of

their bulk and because the essential information is quoted in the written statement.

I believe the Senate staff made electronic copies of these references for your committee staff. Should you desire a copy of the references, please let me know and I

will have them copied and sent to you. In summary form, however, the Tribunal felt there was ample information avail- able, even before the NCI study, to support the extension of the presumption of causation throughout the Marshall Islands. First, is an article which appeared in the

Journal of the American Medical Society (Hamilton, T. E.; van Belle, G.; LoGerfo,

J. P.; ‘‘Thyroid Neoplasia in Marshall Islanders Exposed to Nuclear Fallout,’’ Journal of the American Medical Association, 258:629-636; 1987), which investigated the

appearance of thyroid nodules in 12 atolls previously thought to be unexposed to

fallout from the testing program. The investigators not only found a higher than expected incidence of thyroid nodules in these atolls, but also found the incidence rate

varied linearly with the distance from the testing areas in the northern atolls, suggesting that the nodules were caused by radiation from the tests. Secondly, the findings of the Nationwide Radiological Study, issued in 1994 re- ported Cesium-137 levels two to 11 times greater than global fallout at 15 atolls

that were not included in the Section 177 Agreement. The release in 1994 of a previously classified Atomic Energy Commission report from 1955 (Breslin, A. J.; Cassidy, M. E.; ‘‘Radioactive Debris from Operation Castle, Islands of the Mid-Pacific,’’ New York: U.S. Atomic Energy Commission, New

York Operations Office, Health and Safety Laboratory; NYO-4623; 1955) provided

significant support for the nationwide application of the presumption of causation

by the Tribunal. That report was based on aerial monitoring conducted during the

Castle series throughout the Marshall Islands and indicated external radiation exposures to every atoll of the Marshall Islands, in contradiction to the DOE position

that only the northern four atolls received fallout from the tests. Internal exposures

would have increased the level of exposure even higher than those reported by

Breslin and Cassidy.

During the testing program, a monitoring station was maintained on Kwajalein

Atoll. Although the gummed film methodology provided only a crude measurement

of fallout, ‘‘The clear indication from the monitoring station was that deposition of

fresh fallout occurred at Kwajalein Atoll within a single day following every one of

the detonations over 1 megaton explosive yield’’ (Simon, S. L.; ‘‘STATEMENT OF

STEVEN L. SIMON, PhD, Director, Nationwide Radiological Study, Republic of the

Marshall Islands, Submitted to the United States House of Representatives, Committee on Natural Resources, Subcommittee on Oversight and Investigations in respect to United States Weapons Testing in the Marshall Islands,’’ February 24,

1994.) These findings were reiterated in a 1997 report (Takahashi, T., et al.; ‘‘An

Investigation into the Prevalence of Thyroid Disease on Kwajalein Atoll, Marshall

Islands,’’ Health Phys. 73:199-213; 1997) that stated the data showed that ‘‘all eighteen of the large Marshall Islands tests (those >1 MT explosive yield) were detected

at Kwajalein at about 100 X the background radiation level (Simon and Graham

1996). Presumably, other mid-latitude atolls in the Marshall Islands received similar amounts of early fallout as did Kwajalein.’’

These studies, and those additionally discussed in the attached paper, provide an

ample basis for the extension of the presumption of causation throughout the Marshall Islands.

70

Question 2) The Tribunal has also taken the step of providing awards to individuals born after the end of U.S. nuclear weapons testing. What

legal precedent or empirical evidence did the Tribunal use in justifying

these awards?

Answer: The relationship between the testing program and health effects for those born after the testing period presumably would be the result of either residual

contamination or genetic effects to children of parents exposed to radiation. It is

clear that dangerous levels of radiation continued to exist in parts of the Marshall

Islands even after the testing period. Perhaps the most significant evidence of this

is the return of the people of Bikini to their atoll in 1969 upon assurances of the

U.S. that their homeland was safe, only to be removed again in 1978 upon the discovery that they were exhibiting exposures far in excess of safe levels, because of

the failure to adequately account for dietary exposure pathways. Levels of contamination in the other northern atolls raised similar concerns and eventually led to the

decision by the Rongelap people to leave their homelands in 1985, a move which

appears justified in light of subsequent events. In terms of genetic effects, the current state of knowledge is represented in the recently released National Academy of Sciences BEIR VII ( Health Risks from Exposure to Low Levels of Ionizing Radiation: BEIR VII B Phase 2) report. Therein it

is reported (Executive Summary, p. 16, http://books.nap.edu/catalog/11340.html): Early in the 20th century, it was demonstrated that ionizing radiation

could induce mutations in the germ cells of fruit flies. Those findings were

subsequently extended to a number of other organisms including mice, establishing the fact that radiation is a mutagen (an agent that can cause

mutations in body cells); human beings are unlikely to be exceptions. Nonetheless, it has been difficult to construct studies of human populations to

make statistically significant statements about genetic effects in humans. Because

of the reduced likelihood of causation due to either residual contamination or genetic effects, when the Marshall Islands legislative body (Nitijela) adopted legislation to extend the presumption of causation to those not present during the testing

period, the Tribunal reduced awards to this class of awardees by fifty percent. This

reduction is supported by the findings of BEIR VII, which reports ‘‘the genetic risks,

as measured by the indicators mentioned earlier, are very small.’’ (Executive Summary, p. 17.)

Question 3) In the RMI’s Petition, $26.9 million is requested to pay personal injury awards that have been approved by the Tribunal but are in excess of the trust fund. Do you see this request as exhibiting a ‘‘changed

circumstance’’?

Answer: Yes. While there were grounds for a determination of changed cir- cumstances in relation to this request even before the NCI study, the results of the

NCI study clearly establish a changed circumstance in that the number of cancers

and other health effects greatly exceeds what was known at the time the Section

177 Agreement became effective.

The baseline of what was known about radiation health effects may be established

by a paper, presented in October 1987 to the Japanese Nuclear Medicine Society,

by Jacob Robbins (Clinical Endocrinology Branch, National Institutes of Health, Bethesda, Maryland) and William H. Adams (Medical Department, Brookhaven National Laboratory, Upton, New York), two well established scientists with significant

experience in the Marshall Islands (Brookhaven National Laboratory was the institution charged with observing and reporting on the health of the affected

Marshallese people.) This paper, ‘‘Radiation Effects in the Marshall Islands,’’ was

later published in Radiation and the Thyroid: Proceedings of the 27th Annual Meeting of the Japanese Nuclear Medicine Society, Nagasaki, Japan, October 1 B 3,

1987, Shigenobu Nagataki, editor, Excerpta Medica, Amsterdam-Princeton-Hong

Kong-Tokyo-Sydney, 1989.

In terms of early radiation effects, they reported on Rongelap ‘‘about two-thirds

of the people developed anorexia and nausea and one-tenth had vomiting and diarrhea...skin burns appeared after 12 B 14 days in about 90% of the Rongelap inhabitants.’’

In regard to late effects, they noted: ‘‘It has become evident that thyroid abnormalities B which include benign and malignant thyroid tumors and thyroid failure

B are the major late effects of the radiation received by the exposed Marshallese.’’

They found the following thyroid effects, through 1986:

• 2 cases of profound growth failure in two boys due to radiation related thyroid

atrophy;

• 12 cases of hypothyroidism not related to thyroid surgery

• 51 observed thyroid nodules

71

Æ 16 expected

Æ 35 excess

• 9 observed thyroid cancers

Æ 2.1 expected

Æ 7 excess

They observed three fatal cancers and six ‘‘nonlethal’’ cancers as other Alate radiation effects B or possible radiation effects.’’

• 1 fatal leukemia

• 1 fatal stomach cancer

• 1 fatal cranial meningioma

• 1 nonlethal neurofibroma

• 1 nonlethal breast cancer

• 1 nonlethal colon cancer

• 3 pituitary tumors

These findings establish what was known at the time of the Section 177

Agreement.

The NCI study establishes a basis for what we know now about the health effects,

and reveals the following comparisons of radiation induced cancers:

Cancer 1986 (Adams/Robbins) Current (NCI)

Leukemia 1 5

Stomach 1 15

Colon 1 157

Thyroid 7 262

Other 6 93

Total 16 532

It should also be acknowledged that the DOE in 1982 estimated an additional two

cancers would result from exposures in the thirty years following the Radiological

Survey of the Northern Marshall Islands, conducted in 1978.

If the same ratio of radiation excess thyroid nodules to excess thyroid cancers that

appears in the Adams/Robbins paper (35/7—5) is applied to the NCI estimate of excess thyroid cancers, the number of radiation caused thyroid nodules currently anticipated would be 5 x 262—1310.

The stark contrast of what was known at the time of the Section 177 Agreement

about the health effects resulting from the testing program and what is known now

in light of the NCI study must be regarded as a changed circumstance.

While the Petition as originally filed included a request of $26.9 million for the

unpaid balance of personal injury awards, that amount now stands at $15.7 million.

However, with more than half the cancers estimated by the NCI yet to develop, that

amount reflects only the current balance due and does not reflect future awards.

The CHAIRMAN. Thank you. I thank both the members of the

panel for their testimony. I apologize to you. We have just been

called to a series of votes on the House floor, so we are going to

have to recess the Committee momentarily, and it could be as long

as a half hour or 40 minutes before we are able to get back. So I

apologize to you for that. I know that you have been waiting a long

time to have your chance to testify and have questions, but we will

return as soon as we can.

The Committee will stand in recess.

[Recess.]

The CHAIRMAN. The Committee will come to order.

I apologize for the delay, and because we have so many different

things going on today we are going to hold the hearing record open

so that members can ask questions in writing. They will be submitted to you in writing. If you could answer them in writing so

they can be included in the hearing record.

Mr. Minister, can you describe to the committee here today how

the loss of land use argument in your petition applies to lands

today, and were those lands lost after the 1986 agreement or were

they not known at that time of the Section 177 Agreement?

72

Mr. ZACKIOS. Thank you, Mr. Chairman. If I understand, the

question directly relates to the loss of land before the testing program and today. I would begin my submission to you, Mr. Chairman, that land, to the Marshallese people is their identity. The

people lived off the land prior to the testing program and made all

their livelihood from the land.

Today, 50 years later much of our populations have not returned

to some of these lands that we are talking about. Obviously, the

Nuclear Claims Tribunal has made awards on these lands, and I

believe that the lost use of land, as determined by the tribunal, has

been done in a manner as described by former Governor and Attorney General Thornburg in accordance with legal principles very

similar to those established by U.S. legal systems, but land is a

very important part of the Marshallese people. It is indeed their

identity, and it’s a legacy for us when we lose our land.

The CHAIRMAN. Were there new losses discovered after 1986 or

how did that change since 1986?

Mr. ZACKIOS. I am not too sure I get the question properly, Mr.

Chairman. Would you please, if you could kindly rephrase it?

The CHAIRMAN. I guess the question is, is that we had the 1986

Compact with the Section 177 Agreement that was included in it,

and with the Change of Circumstances petition that has been filed,

are you alleging that there was a change of circumstances in regard to the loss of land since 1986?

Mr. ZACKIOS. That’s a very good question, Mr. Chairman, and if

I can get back to you with an answer on that question?

The CHAIRMAN. I will let you answer that for the record and you

can answer it in writing for the record.

Has the Marshall Islands Government ever formally approached

past administrations regarding changes or concerns they had regarding the radiological clean-up standards on the islands?

Mr. ZACKIOS. Mr. Chairman, yes, we have done that. In fact, in

numerous occasions where we had the opportunity to meet with the

Department of Energy, we have always approached them on issues

of monitoring of the land from the four atolls, those that were particularly devastated by the testing program.

I will give an example of the Runit Dome, which I have made

mention of in my statement. To date there is no monitoring of the

Runit Dome in the Marshall Islands, and we have heard the testimony that there is monitoring. Well, Mr. Chairman, that’s one good

example of no monitoring in the Republic of the Marshall Islands

from the testing program.

The CHAIRMAN. There is no monitoring there?

Mr. ZACKIOS. There is no monitoring of the Runit Dome to this

date.

The CHAIRMAN. Judge Plasman, in your testimony you talked

about the case in Nevada with the downwind—what did you——

Judge PLASMAN. Downwinders, sir?

The CHAIRMAN. Downwinders, that was it. And it was my understanding of your testimony, and I want to make sure I understand

this, that the presumption was made that if they did get sick and

it appeared to be from exposure, that they were then covered.

Judge PLASMAN. Mr. Chairman, I think the way that that program works is that if they were residing in one of the affected

73

counties during the specified test period and they developed a

radiogenic condition as defined in statute, a list of, I think it’s some

21 cancers now, then the presumption is that their condition was

caused by the exposure from the Nevada tests and they qualify for

compensation, without any independent evidence of the level of

their exposure to radiation.

The CHAIRMAN. If we applied a similar program to the Marshalls,

making the assumption that there was exposure, how many people

would we be talking about that were living on the islands at the

time that are still living on the islands?

Judge PLASMAN. Mr. Chairman, I think that that would be the

population that was there during the testing period, which would

have been about 14,000 people at that time. I would not be

able——

The CHAIRMAN. Do you have any idea how many are left?

Judge PLASMAN. I would venture a guess based on the experience

of the tribunal of the awards the tribunal has made, approximately

40 to 50 percent of those people have passed away, so perhaps

similar number of the population that was present in the Marshall

Islands during the testing period would——

The CHAIRMAN. 7,000 to 9,000?

Judge PLASMAN. Perhaps.

The CHAIRMAN. Thank you.

Ms. Drake, did you have questions?

Mrs. DRAKE. Thank you, Mr. Chairman.

Thank you for being here today. It has certainly for me been a

very interesting panel discussion, both of these so far, and I think

there will probably be a whole lot more that I learn about the Marshall Islands.

Judge Plasman, I think the biggest question that I have is what

has been done to date? Because I have heard a lot of discussion

about the 177 and opening it back up because there is new information now, but I also just heard about purchase of land, so I

didn’t know if land payments came out of that $150 million settlement, or is there some way to tell us how much has been spent in

the Marshall Islands since this happened, and what is the total

compensation that has been awarded by the tribunal and to how

many people? I would like to also say with that, I think all of us

want to feel like we are doing the right thing, and that we feel like

something very bad has happened here, and we would like to make

sure that we are really understanding it and that we are doing the

right thing in taking the responsibility that we should.

Judge PLASMAN. All right. Thank you, Representative, Mr. Chairman. In terms of first the personal injury portion of the program,

the tribunal has made about 2,100 awards in the amount of some

$85 million I believe, of which approximately 65, $66 million has

actually been paid.

For the property claims, I mean you’ve asked a complex question

in terms of how much has been paid. Under the 177 Agreement

there were mandated payments from the trust fund that went to

each of the four atolls on a quarterly basis, and those funds were

subtracted from the total awards that the tribunal made in the

cases of Bikini and Enewetak, so that the awards of the tribunal

represent the net award. And in the case of Enewetak, the total

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award was some $386 million, and in the case of Bikini the total

was some $563 million. Now, that represented damages for lost

abuse of the land for the period that they have been unable to use

that property and for the period of time that that property is

deemed unusable.

Mrs. DRAKE. How long will that be? Do we know? Is it ever going

to be usable again?

Judge PLASMAN. Representative, Mr. Chairman, there are remediation measures that can be taken to clean up and return the land

to usable, safe condition. A lot of these issues are covered in our

decisions themselves, and I would, at the risk of annoying the Representative, I really would prefer to have these decisions made part

of the record so that we don’t take anything out of context, and certainly the representatives of the claimants from these atolls would

be very willing to explain to you specifically what their position is

on those.

Mrs. DRAKE. OK. Well, then let me just ask you last on the medical payments that have been made, is that strictly to the original

inhabitants or does it also include descendants?

Judge PLASMAN. It includes descendants.

Mrs. DRAKE. It does include descendants. So——

Judge PLASMAN. Yes. Excuse me, Mr. Chairman, Representative,

the tribunal awards have been made to the people that suffered the

condition and if that person passes away, then to their survivors.

In terms of the medical program established under the 177 Agreement, that provides health care for the people of the four atolls

without regard to when they were born, and also includes those

people who have received an award from the tribunal.

Mrs. DRAKE. I am sorry. I missed that. So if you live there now,

regardless, do you have to be a descendant of someone who was

there, or if I went there now, would I get free health care, or do

you have to have been there at a certain period of time?

Judge PLASMAN. The Constitution of the Marshall Islands does

provide for universal health care as a constitutional right, so in

that respect there—I mean there are payments that are made from

as part of the payroll for people and co-pay provisions. But I mean,

yes, you would be eligible for health care on that basis, but there

is additionally the 177 health plan that provides health care specifically for the people of the four atolls and those people who have

received a tribunal award.

Mrs. DRAKE. Thank you very much.

Mr. Chairman, my time has expired.

The CHAIRMAN. Mr. Inslee, do you have any questions?

Mr. INSLEE. I do. Thank you, Mr. Chairman.

We just had a Downwinder jury verdict out at Hanford,

Washington, for the Green Run release of radioactivity from the

Hanford, Washington, site. The jury concluded that people were injured, thyroid problems related through radioactivity. Based on

probably new information that we didn’t have in the early ’50s

when the Government intentionally released this information.

That just points up that it would seem to me that there would,

almost by necessity, be additional scientific information that now

exists about the extent of radioactivity probably that—where it

75

went, and there is probably additional information about the physiological results of that. I have to believe that.

Is that the case? If so, why did this result or this group that reviewed this petition conclude there wasn’t new information? I mean

there is new information every week on radioactive results. That

seems surprising to me. Judge Plasman, can you give any insight

into that?

Judge PLASMAN. Yes, sir, you are right.

[Laughter.]

Judge PLASMAN. I know only what we’ve heard today about the

interagency process that went into the review of the Marshall

Islands’ petition for changed circumstances. It sounds like it was

an involved process, and I can’t really speak to their review of it.

I do believe that one of the difficulties is that there was a lack of

monitoring at the time of the test program throughout the Marshall Islands. There are some instances of monitoring, one of which

I think Representative Faleomavaega referred to, the so-called

Breslin-Cassidy report, that reported the results of aerial monitoring after the different tests in the Castle series that was done

throughout the Marshall Islands that indicated that there were significant exposures throughout the Marshall Islands.

Additionally, there was gum film data done at Kwajalein, and in

fact, I think Dr. Simon, who will be testifying later, may have some

additional insight on that.

But in terms of looking at the 67 tests that occurred in the Marshall Islands, there is remarkably little data in relation to the

short-lived radio isotopes that were produced, particularly outside

of the area commonly referred to as the Four Atolls.

Mr. INSLEE. So is there any kind of rejoinder you would have to

this report on your observations of how you would conclude that I

happen to be right in this rare instance? I mean what would be

your response to those conclusions? Is it just that they made an

error by assuming that since there was little original data, you

couldn’t have concluded there had been changes or what kind of response would you make?

Judge PLASMAN. Well, I think one thing that the scientists have

looked at is the residual contamination that can be measured, and

that tends to be the cesium-137 that has a longer half life and can

be observed in the soil. But in terms of the radioactive iodines, for

instance, which can be very destructive to the thyroid gland, they

don’t appear in the environment, and the question has been do

these radioactive iodines, do they follow the pattern of deposition

that you see for the radioactive cesium?

I know that there will be scientists in the next panel that can

address that issue, but there is evidence from Chernobyl, for instance, that these different radioactive isotopes, cesium and radioactive iodine have quite distinct patterns of deposition so that you

can’t just look at the cesium as it is today and say that is what—

that shows where the radioactive iodine went during the test. And

from the results of this Breslin-Cassidy report, where there was

aerial monitoring throughout the Marshall Islands that did indicate that there were exposures in the very southern atolls as well.

I think that NCI report, when they did their dose reconstruction

work for the study that they produced for the Senate, utilized that

76

Breslin-Cassidy information and determined that there were exposures throughout the Marshall Islands, and as a result there were

cancers that occurred throughout the Marshall Islands that resulted from the testing program.

Mr. INSLEE. Thank you.

Judge PLASMAN. Thank you, sir.

The CHAIRMAN. Mr. Abercrombie.

Mr. ABERCROMBIE. Thank you, Mr. Chairman.

Mr. Minister, thank you for a very thorough presentation, much

too much to go into in my brief time, but can I refer you to a couple

of instances—and I believe you were here during my original questioning, or the original panel. I believe you heard my questions to

the State Department, the Section on Health at Department of Energy and Dr. Bouville with the NCI, the National Cancer Institute.

You did hear those questions, did you not, and answers?

Mr. ZACKIOS. Yes, I did.

Mr. ABERCROMBIE. From the first panel, thank you. So if you will

refer to page 8 of your testimony, section 7 under the Compact negotiations. You make a statement there, ‘‘Furthermore, it is disingenuous to assert that the RMI should have sought funding for

some of its CCP requests as part of the recently concluded Compact

renewal discussions. During those discussions the State Department made it clear to the RMI that nuclear and CCP issues would

not be a part of the Compact renewal negotiations because they

were to be handled separately by Congress.’’

As you know, I paid close attention, as did other members, including the Chairman, to those negotiations and had numerous discussions with people at State and Interior, and that is my impression as well. Do you have anything in the way of anything in writing to that point, perhaps notes or something of that nature from

the discussions at that time that led you to this statement that the

State Department really didn’t want all of that put into the Compact negotiations but reserved that either for the changed circumstances or separate activity by the Congress?

Mr. ZACKIOS. Yes, Congressman, and there is a letter to myself

dated March 27, 2002 from the then Compact negotiator, Mr. Albert Short. And I will just read a portion of——

Mr. ABERCROMBIE. Could you just read a portion, and I would

ask your permission, Mr. Chairman, to enter it into the record, the

entire letter.

Mr. ZACKIOS. Thank you, Congressman and thank you, Mr.

Chairman.

One paragraph reads: ‘‘We cannot, however, address requests for

additional assistance related to the nuclear testing program since

this issue is on a separate track. It is now before Congress via the

RMI’s request submitted under the Changed Circumstances Provision of the agreement between United States and the RMI for implementation of the Section 177’’——

Mr. ABERCROMBIE. Thank you very much. You will submit that

letter?

Mr. ZACKIOS. Yes, I will, sir.

[The letter submitted for the record follows:]

77


United States Department of State 

Washington, D.C. 20520 

Harch 27, 2002 

Dear Mr. Minister: 

Please find enclosed the United States proposal of key 

elements of Title II assistance under the amended Compact 

of Free Association between the Government of the United 

States and the Government of the Republic of the Marshall 

Islands, (RMI). 

In formulating our proposal, we have considered the 

~V,I proposal presented in Honolulu in December as well as 

other submissions made by your side. Our proposal is a 

carefully considered response to the issues raised during 

our discussions. It is designed to assist, within our 

special relationship, the RMI's effort to advance selfreliance, promote public and private sector reform, and 

improve accountability. We are developing amended Title II 

language which will embody this financial proposal and we 

will share this document with you shortly. 

We note your submissions with regard to Ebeye special 

needs and nuclear health care. We believe our enclosed 

funding formulation is sufficient to address Ebeye needs 

and health care for the entire Marshallese people. We 

cannot, however, address requests for any additional 

assistance related to the Nuclear Testing Program since 

this issue is on a separate track. It is now before 

Congress via the R~I's request submitted under the changed 

circumstances provision of the Agreement between the U.S. 

and the RMI for the implementation of section 177 of the 

Compact. \~e recently received a copy of a let ter from 

His Excellency 

Gerald Zackios, 

Minister of ~oreign Affairs and Trade 

of the Republic of the Marshall Islands, 

Majuro. 
78

Mr. ABERCROMBIE. And will you submit anything else to the

Chairman that you think might also indicate that this was the position of the State Department and/or the Interior Department with

regard to the issues at hand?

Mr. ZACKIOS. Yes, I think this is what I will be providing.

Mr. ABERCROMBIE. One other quick point then. Mr. Plasman, did

you also hear the questions to the previous panel from me?

Judge PLASMAN. Yes, sir, but I would be hard pressed to remember every one.

Mr. ABERCROMBIE. That is OK, I will do it for you.

[Laughter.]

79

The CHAIRMAN. I can give you the answers.

[Laughter.]

Mr. ABERCROMBIE. Again, I want to emphasize too to everybody

that is still here, and I certainly can speak I think for both sides

of this political aisle, that we were not looking for villains here, but

some people might end up being villains by default.

Dr. Bouville indicated—and you will have to take my word for

this—on page 4 of his testimony, unless you happened to see it, ‘‘In

the absence of registry-based baseline cancer rates for the Republic

of the Marshall Islands, the NCI Surveillance, Epidemiology and

End Results Program,’’ commonly known as the SEER program.

Are you familiar with that program?

Judge PLASMAN. Only by reading of it, sir.

Mr. ABERCROMBIE. OK. But you are familiar with—the name

rings something that strikes you as you know that such a program

exists?

Judge PLASMAN. Yes, sir.

Mr. ABERCROMBIE. Let me read it again here. ‘‘In the absence of

registry-based baseline cancer rates for the Republic of the Marshall Islands, the NCI’’ SEER program ‘‘rates representative of native Hawaiians were used as a surrogate.’’

Is it your understanding in your role that there has never been

a complete survey of the radiological damage, the extent of the radiological damage in the Marshall Islands with regard to the kinds

of data that has been made available to you in your deliberations?

Judge PLASMAN. Yes, sir.

Mr. ABERCROMBIE. It is astounding to me, to tell you the truth.

I hadn’t really comprehended that before. Are you aware of the

kinds of stories, anecdotally or perhaps in direct testimony, to you

or to your knowledge of, on the day, for example, of the BRAVO

test, of chunks of ash settling all over the islands, in the ocean,

children even and perhaps adults, older adults, picking up the ash

and eating it, some people even thinking it had been sent by God,

that it was manna from heaven in a biblical sense, and that people

actually tasted the ash and that it was extensively distributed

throughout the Marshalls?

Judge PLASMAN. Yes, sir, we have received testimony to that effect, although the extent of it throughout the Marshall Islands I

don’t believe I have heard testimony that there has been heavy fallout in the southern atolls, but certainly in the northern atolls we

received testimony that this type of——

Mr. ABERCROMBIE. The ash fell in the ocean, did it not?

Judge PLASMAN. Yes, sir.

Mr. ABERCROMBIE. The ocean has currents, does it not?

Judge PLASMAN. It does, sir.

Mr. ABERCROMBIE. Do fish feed in the ocean?

Judge PLASMAN. Yes, sir.

Mr. ABERCROMBIE. In the Marshalls as it does elsewhere on the

planet?

Judge PLASMAN. Yes, sir.

Mr. ABERCROMBIE. Could that fish have provided sustenance to

people throughout the Marshalls?

Judge PLASMAN. It certainly could and would have, sir.

80

Mr. ABERCROMBIE. Last question. What is your understanding of

the $150 million associated with the 177 Agreement? Was that supposed to be, to the best of your knowledge, a final settlement or a

complete number, or was it arrived at in any way that you know

of that was related to specific criteria of any kind?

Judge PLASMAN. To my knowledge it was a politically derived figure that did not have reference to any quantification of damages.

I think it was the role of the tribunal to make the final determination of all claims of the people of the Marshall Islands for damages

from the testing program.

Mr. ABERCROMBIE. Is it your understanding that under that program that if the $150 million proved not adequate, that provision

was made, as was indicated by the gentleman, Mr. Krawitz from

the State Department, that the Congress had not only the capacity

but could be expected to have a request made of it for additional

funds?

Judge PLASMAN. Yes, sir, if there were changed circumstances.

Mr. ABERCROMBIE. Thank you.

The CHAIRMAN. Ms. Watson.

Ms. WATSON. Thank you, Mr. Chairman.

I just want to follow up on something my colleague, Mr. Abercrombie, has asked. Because of the currents that flow south down

toward the equator, were you aware that there were instances of

cancer developing particularly in women? I was down in Pohnpei

and we went over the Kosrae and we had reports from our two

American doctors there at the hospital that women were coming in

with cancer of the breast where the nipple starts. It starts there

and it moves, and the breast becomes extended, and it was an alien

type—that is the word they used—an alien type cancer.

We had a biologist, a microbiologist explaining the currents in

the ocean and how—and I mentioned this before—but how the fallout got into the sea life. And since people live off the sea life that

it seemed as if the cancer was generated from the fallout. What do

you know about that?

And I mentioned before that the complaints that we heard at the

tribunal were relative to other generations. You know, it might not

have manifested itself in that generation in the ’40s and the ’50s

but certainly they saw it later on, those born in the ’60s and ’70s

and so on. What do you know about that?

Judge PLASMAN. Well, Representative Watson, I want to also express my appreciation for your attendance at the tribunal hearing

when you were in Majuro. Thank you very much.

Ms. WATSON. Yes.

Judge PLASMAN. The primary avenue of exposure for at least the

people in the Marshall Islands is at this point through the food

chain. During the testing period itself people were subject to fallout

where they were immersed in it, they would have inhaled it or—

but at this stage after the test period, you are going to find that

it is through the food chain, through the—certainly fish would be

part of that, but the vegetables of the atolls are going to be where

a large part of that radiation dose comes from.

I mean I guess I wasn’t aware of the cancer situation in Pohnpei

and its relationship to the testing program in the Marshall Islands

so I can’t really speak to that. In terms of the inter-generational

81

effects, the tribunal has indeed heard much testimony from the

people who were directly affected, moving testimony. I can say that

the state of science at this point is not able to prove the

inheritability of these radiation-related effects in human populations. There is certainly evidence that these effects exist in animals, in fruit flies, in mice. There is evidence that there is inherited chromosomal damage in humans, but the difficulty in creating

a study with the numbers and the length of time generationally to

be able to provide these inter-generational effects to the satisfaction of the scientists using their statistical methods is very cumbersome.

I think some reference was made in the previous panel that

these types of studies are going on in Japan in relation to the

atomic bomb survivors, but I certainly will endorse your comment

that the tribunal heard extensive testimony on these types of effects in the Utrik case.

Ms. WATSON. Just in following up, I was very impressed and

compelled at the request for additional funding because many of

the islands that they returned to were not thoroughly cleaned up

as yet. And as you know in the testimony people are living just on

the bare land, so the environmental conditions, not only the physical conditions, because we visited some of the clinics where you go

into the chamber for whatever the hours were to rid your body, if

that is possible, of whatever the fallout might contain, and there

were people continuously coming into those clinics, and I did not

see the evidence that we have completely cleaned up the environment that they lived in on various islands. Enewetak was the, I

guess, the one that really displayed a real lack of resources, and

so I am trying to find—I can get my staff on this—why there was

a rejection of the claim, where the claimants might have fallen

short. Can you help me with that? In what areas do you feel that

their claims failed to detail out what the need was?

Judge PLASMAN. Mr. Chairman, Representative Watson, in regard to the claim of the people of Enewetak, the tribunal did issue

an award in a class action for the damage to property and consequential damages that they suffered. In terms of what the claim

lacked, I am not sure that—I mean the tribunal made a decision

based on the facts and the law that were presented the hearing

and submitted in the papers. I don’t believe I can really go outside

the decision itself to respond to your question if we’re talking about

that specific case.

Ms. WATSON. I am going to send something in writing because

I felt at the time—and of course we only saw a snippet as you

know—that the people were certainly, should certainly be rewarded

for what they had given for our testing, and I felt that their claims

were legitimate, and so I would like to know what the real facts

and details are, the reason why their claim was rejected for additional monies, because I felt we hadn’t done a thorough job up to

that point, and that was in 2001 I believe. Was that 2001?

Judge PLASMAN. 2001 or 2002.

Ms. WATSON. 2001, 2002. And this is only 2005, so they made

what I thought were authentic claims. I thought their requests

were legitimate and I would like to know why they were rejected.

So we are going to send a letter to the various departments inVerDate 11-MAY-2000 13:32 Oct 24, 2005 Jkt 000000 PO 00000 Frm 00087 Fmt 6633 Sfmt 6602 J:\DOCS\21448.TXT HRESOUR1 PsN: HRESOUR1
82

volved and see what the response is, so we might follow up with

you after we get that response.

Judge PLASMAN. We’ll look forward to your communication, Representative.

Ms. WATSON. Thank you so much.

Judge PLASMAN. Thank you.

Mr. ZACKIOS. Mr. Chairman?

The CHAIRMAN. Yes, sir?

Mr. ZACKIOS. If I may add to some of the answers that were provided through earlier questions by the honorable representative on

reproductive abnormalities. To date in the Marshall Islands health

system we have no gynecologists, no mammography unit, no

oncologists, so these are some of the challenges we face in dealing

with some of these issues.

And with respect to your question of other islands that are proximate to the Marshall Islands, and in particular, Kosrae, as you had

mentioned. In 1994 Dr. Ratford provided testimony before this committee, and in his testimony he made some reference to that effect,

and I would read some of that if I may. And he stated: Finally, I

would like to share another anecdote I heard in Majuro. During the

bomb testing period, exact date unknown, the people living on

Kosrae Island were told one day by men from the U.S. Navy unit

on the island not to eat the local food, nor drink the water.

I’ll stop there. Thank you, if I answered some of your questions.

The CHAIRMAN. Thank you.

Mr. ABERCROMBIE. Could I add one thing?

The CHAIRMAN. Sure.

Mr. ABERCROMBIE. Thank you.

Mr. Minister, it is very important—you reminded me and I

meant to ask you this before, again, with the—and I neglected to

do it. I beg your pardon.

When we talk about health care—Mr. Krawitz isn’t here. I am

not trying to pick on him. I wish he was still here. But the State

Department kind of indicated that this was, you know, this final

settlement and all the rest of it and health care issues were there.

But part of the petition of changed circumstance had to do with

how to deal with secondary and tertiary care, right? You don’t have

those facilities. It wasn’t Mr. Krawitz. I believe it was Mr. Cary

from the Department of Energy said when you have serious issues,

say issues of oncology, diagnosis and treatment and so on, don’t

you have to send people to Hawaii, to Straub?

Mr. ZACKIOS. That’s correct.

Mr. ABERCROMBIE. So you don’t have the facilities down there. It

is not as if there are well-equipped hospitals and doctors and

nurses capable.

And when you are making your settlements, do you have to take

that into account, Mr. Plasman, as to what the health capabilities

are of the Marshall Islands in terms of providing the health care

that we are talking about?

Judge PLASMAN. Representative Abercrombie, perhaps the tribunal should be taking that into account. What the tribunal has

done is to, as part of the award process, is to make a award in

whatever the listed amount is, and then make referral to the 177

health program, and I am sure that——

83

Mr. ABERCROMBIE. Well, with your knowledge of the 177 health

program, is it fair to say it is limited?

Judge PLASMAN. Yes, sir, and insufficient.

Mr. ABERCROMBIE. OK, thank you.

Ms. WATSON. Mr. Chairman, may I?

The CHAIRMAN. Yes.

Ms. WATSON. I am sorry that Representative Bordallo is not here

because Guam and Hawaii both are complaining about the debt

owed in their hospital system from Kosrae and some of the other

islands down in Micronesia. And I do know that when I toured the

hospital in Kosrae and the doctors informed me of these new cases

of breast cancer, I went to the wife of the Governor and said, you

know, we need mammograms here, we need people who know how

to use them. There was no clue as to how to identify breast cancer.

I guess when you see it, you will know it, but how to treat it, and

how to prevent it and so on. But they absolutely had no knowledge,

no equipment.

So I am following up on a question that Representative Abercrombie just asked. Would the 177 funds, could they be used to

repay the medical expenses of people coming up from the islands—

I am talking about the Micronesian islands now—but we see the

flow all the way down and touching the Micronesian islands, which

are only 6 degrees above the equator, so those water flows are now

carrying with them, as I would consider probably still radioactive

fallout. Can the fund be approached for the repayment of the debt

of the treatment of people who are complaining about cancer? Can

we pay the hospitals who have treated these people in Guam and

in Hawaii? Anybody for that?

Mr. ZACKIOS. Thank you very much, Congresswoman. As I understand it, the Congress has allocated funds to Guam and to the

State of Hawaii for Compact impact in the process of negotiations

with—on a separate arrangement.

The CHAIRMAN. If I could, just to answer your question, in working with Neil and Madeleine when we were negotiating the Compact, we did include a substantial amount of money for impact to

Guam and Hawaii, and that was something that we worked out

with Neil and with Ms. Bordallo.

Ms. WATSON. Mr. Chairman, was that above and on top of the

150 million?

The CHAIRMAN. Yes, ma’am.

Ms. WATSON. The current request that is coming in, are they taking in account the additional funding, and are they trying to—you

know, I don’t know how that works. They are asking for—what is

the amount that they are asking for?

The CHAIRMAN. There are different things included in that 2.3

billion.

Ms. WATSON. This is separate and apart from that?

The CHAIRMAN. Yes, it is separate and apart. And in negotiations

with Mr. Minister and the Government of RMI, with Hawaii, with

Guam, and other surrounding areas, we were able to work out on

the Compact additional money for impact on the medical side, but

that was above and beyond what has happened already. What we

are dealing with the changed circumstances is kind of a separate

area, separate issue that we are trying to deal with. It is 2.3 billion

84

total, but there are land use issues, there are medical issues, there

are other things that they are saying are in addition to what we

have been able to do already.

Ms. WATSON. With your environment and agricultural background, I don’t know what the claims request covered, but I do

know there were environmental problems, there were agricultural

concerns and so on, and so I think this request is probably addressing some of those. I just don’t know separate and apart, and you

might want to——

The CHAIRMAN. That is what they are dealing with, and when

you look at the issues that are in front of us right now in terms

of the changed circumstances, the decision that we have to make

are in terms of are there changed circumstances, and if so, what

is the proper compensation for that? And if there are not changed

circumstances, are there still liabilities or responsibilities that the

U.S. Government has.

Ms. WATSON. Who is determining that, this oversight committee

or the various departments?

The CHAIRMAN. It is our job.

Ms. WATSON. It is our job?

The CHAIRMAN. OK. State Department is—in defense of the State

Department they were asked to respond specifically to the changed

circumstances petition, so what they were testifying to was just

that. If you want to ask State Department or Energy or Interior

or any of the other departments do they feel like we still have additional liability, they may come back with a different answer. But

when it comes to the petition, they were just testifying strictly on

the petition.

Ms. WATSON. I understand.

The CHAIRMAN. I think Neil and I, I think, probably agree on a

lot of this, that there are issues that we still have to take care of.

It is just a matter of within the context of this petition what fits

and what doesn’t?

Ms. WATSON. I haven’t read through everything here, and what

I have in front of me are just the testimonies from the various witnesses. If we could be privy to the information that you have so

that our monitoring responsibilities can be addressed, I don’t have

a clue as to what was worked out. I do have some idea about 177,

but not what you worked out, and not what those funds would go

to care for.

If you can share that with us, we can make——

The CHAIRMAN. We will definitely share with International Relations all the information that we have, absolutely.

Ms. WATSON. OK, very good.

The CHAIRMAN. I am going to dismiss this panel. Thank you very

much for your testimony. I again apologize for the delay in getting

to the testimony, to the question, but thank you very much. I know

both of you have come a very long way to be here, and we appreciate the effort that was made. Having made that trip last year, I

can testify that that is a long way to go.

[Laughter.]

Judge PLASMAN. Thank you, Mr. Chairman.

Mr. ZACKIOS. Thank you.

85

The CHAIRMAN. I am going to call up the third and last panel.

It consists of experts with a strong background in the numerous

scientific and legal issues that we confront here today. If I could

have you join us. Please remain standing. If I could have you raise

your right hand.

[Witnesses sworn.]

The CHAIRMAN. Thank you very much. Let the record show they

all answered in the affirmative.

Now I really have to apologize to you because you guys have

been waiting all day long. Thank you very much for your patience

and being here.

We are going to begin with Dr. Mauro.

STATEMENT OF JOHN MAURO, Ph.D., CHP, SENIOR VICE

PRESIDENT, S. COHEN & ASSOCIATES, McLEAN, VIRGINIA

Dr. MAURO. Thank you. Mr. Chairman, members of the committee, I would like to thank you for inviting me here today to

speak on behalf of the people of the Marshall Islands.

I am a health physicist, and in 1998 our company, Sanford

Cohen & Associates, was retained by the people of the Marshall

Islands to assist them in a broad range of radiological issues, but

they really come down to two essential questions. They asked us

to take a look at the historical radiation exposures that were experienced by the people of the Marshall Islands due to the testing

that took place, basically the exposures that occurred during and

immediately following those tests, and to determine whether or not

the work that was done by our Government was in fact a fair characterization of the radiological impacts that occur from those tests.

The second thing we were asked to do is to look at the current

levels of residual radioactivity on the islands and determine whether or not there’s a need for additional cleanup in order for the lands

to be used and be in compliance with current radiation protection

standards that are being used in the United States.

During the course of our work, which continued for about 5

years, we also were asked to participate in the preparation of the

changed circumstances petition. So we have contributed to that.

What I would like to do in my 4 minutes that are remaining, is

I’d like to basically go down the 9 items that have changed, without

a doubt, over the past—since 1986, since the 177 Agreement was

put in place, that have a profound effect on the costs associated

with remediating this problem. I think a lot has been mentioned

in many discussions, but in my mind it boils down to 9 items. Let

me go through them one by one quickly.

One is in the mid ’90s the Department of Energy had an openness initiative, where large amounts of classified data were declassified. When we were brought in in 1998 we had the benefit of having access to an enormous amount of data which no one had access

to prior to that unless they had proper clearances. We reviewed

that data in depth, and we used that data as the basis for evaluating whether or not the Government had done a good job in reconstructing the historical doses that were experienced by the people

of the Marshall Islands from the weapons testing.

We concluded that the Government significantly underestimated

those doses. For example, we heard today that the National Cancer

86

Institute reconstructed the number of cancers that have occurred

and are projected to occur. Those reconstructions were based on estimates of radiation doses that were performed by the Government.

We believe the Government has underestimated the doses to the

whole body by about a factor of 2. In other words, the claim is that

the people of Rongelap, for example, experienced 175 rem whole

body exposure. We believe that the people of Rongelap, at the time

of the BRAVO test, experienced something closer to 300 to 400 rem

whole body exposure, and we have reasons for that, extensive scientific reasons for that.

We also believe that the thyroid dose estimates were significantly

underestimated, perhaps on the order of 10 to 20 fold underestimate. So because we had that data which did not exist available

to—in fact, even the researchers of the Government, when we

spoke to them, they did not have access to that data. So one of the

major changes was that data became available and allowed us to

reassess our understanding of what those doses were.

The second thing that I’d like to mention that changed was following 1986 reports came out from what’s called the Bikini Atoll

Rehabilitation Committee, and also many, many reports came out

from the Environmental Protection Agency, which started to quantify how much it costs to remediate radioactivity in the environment. In other words, it was detailed studies done to see what does

it cost to clean this stuff up? That was not available at the time

of the 177 Agreement. It became available subsequent to that

agreement, and we made use of that information in order to evaluate what the cost would be to remediate the lands to a level that

is currently considered to be acceptable within the United States.

The other item that changed was—and this was mentioned previously—was the risk coefficients for the risk of radiation exposure.

In 1985 there was a certain understanding for every unit of radiation exposure you receive, there was a certain risk, health risk.

Well, that understanding changed substantially since that time period, and we now understand that the risks per rem are substantially higher than was believed at the time of the 177 Agreement.

In addition, the radiation cleanup criteria was reduced markedly.

In 1986 the radiation protection criteria for members of the public

and the cleanup criteria was 500 millirem per year. That has

changed dramatically in the last 15 years, and today the cleanup

criteria for the EPA is 15 millirem per year, and the cleanup criteria that the Nuclear Regulatory Commission uses is 25 millirem

per year.

So you could see that there is a dramatic change in the regulatory structure and criteria for what constitutes as clean and acceptable. In fact, that probably goes largely to the increased cost

to cleanup. In other words, instead of having to meet millirem, you

need to meet 15 or 25. In our case, when we did our analysis we

used 15 because that in fact was the criteria that was judged to

be the applicable criteria through the tribunal.

In addition, a changed circumstance is that the tribunal has

heard testimony to this effect that has reappeared as CNA appeared before the tribunal, and the tribunal has ruled on what it

will take to clean up the islands to the acceptance criteria. That

has all been documented. Judge Plasman has made reference to it.

87

I consider that, those rulings to be a changed circumstance. That

information, what it would cost to clean up, was not available in

1986.

And finally, the NCI report itself I consider to be a major

changed circumstance. In 1986 the understanding regarding the

number of cancers that might be associated with the exposures experienced by the people of the Marshall Islands was very, very

small. Now the estimate is 530, and I consider that finding, which

only came out relatively recently, a substantial changed circumstance, something we did not know before.

I would like to add though, and emphasize again, that that number of 530 may turn out to be a reasonable number, but it may

turn out to be a little bit low because I believe that work was done

based on the Government’s estimate of what was the doses that

were experienced. And we believe those doses were underestimated

substantially.

I think those really capture the essence of what I believe to be

the heart of the changed circumstance issue.

[The prepared statement of Dr. Mauro follows:]

Statement of John Mauro, Ph.D., CHP, Senior Vice President,

S. Cohen & Associates

This statement was prepared by Dr. John Mauro as an employee of S. Cohen &

Associates (SC&A, Inc.) of McLean, Virginia. On October 16, 1998, SC&A was retained by the Enewetak/Ujelang Local Government Council (‘‘the Council’’) of the

Republic of the Marshall Islands to assist the Council with respect to radiological

issues concerning the remediation, restoration, and resettlement of Enewetak Atoll.

This was the beginning of a long and productive relationship with the people and

the leadership of the Republic of the Marshall Islands, which continues to this day.

I am here today to help the Committee on Resources and the Committee on International Relations Subcommittee on Asia and the Pacific achieve a deeper understanding of the facts associated with several complex scientific/regulatory issues addressed in the Petition for Changed Circumstances filed by the Government of the

Republic of the Marshall Islands with the President of the United States Senate and

the Speaker of the United States House of Representatives on September 11, 2000

(• the Petition’’).

Along with Dr. Hans Behling, also with SC&A, I contributed to portions of the

Petition dealing with certain scientific issues that represent a change in circumstances that must be carefully considered by the Committee. However, two reports have been prepared in support of these proceedings that take issue with many

of the findings that Dr. Behling and I present in the Petition. These reports are entitled ‘‘Congressional Research Service Report for Congress,’’ dated March 14, 2005,

and a report prepared by the Administration entitled ‘‘Report Evaluating the Request of the Government of the Republic of the Marshall Islands presented to the

Congress of the United States of America Regarding Changed Circumstances Arising from U.S. Nuclear Testing in the Marshall Islands pursuant to Article IX of the

Nuclear Claims Settlement Approved by Congress in Public Law 99-239,’’ dated November 2004. The purpose of my statement today is to demonstrate that many of

the scientific findings and regulatory positions articulated in those reports are incomplete and/or incorrect, which brings into question the major conclusion of the

Administration’s report that ‘‘the Marshall Islands’’ request does not qualify as

changed circumstances....’’ In the discussion that follows, I will refer to these reports

as the CRS Report and the Administration’s Report.

The Petition identifies a number of changed circumstances. I will limit my statement to those changed circumstances dealing with what I will refer to as ‘‘incomplete estimates of dose’’ associated with the BRAVO test and ‘‘changes in radiation

protection and cleanup standards.’’ I hope to demonstrate that, without a doubt, at

the time of the enactment of the Compact of Free Association between the United

States and the Marshall Islands, there was only a limited understanding of the extent of the health impacts of weapons testing in the Marshall Islands, nor had anyone anticipated the magnitude of the changes in the radiation protection standards

and cleanup criteria that would occur over the subsequent 15 years. These two facts

88

have substantial cost implications that go to the very heart of the reasons why

changed circumstances provisions were incorporated into Article IX of the Section

177 Settlement Agreement. The CRS Report and the Administration’s Report either

disagree with our position regarding these matters, avoid discussion of some of

these issues, or attempt to diminish the importance of these issues. I hope to demonstrate where the CRS Report and the Administration’s Report are deficient with

regard to these matters and convince the Committee that there have been substantial changed circumstances due to incomplete estimates of dose and changes in radiation protection and cleanup criteria.

Incomplete Estimates of Dose

SC&A has prepared three reports on behalf of the People of the Marshall Islands

that describe in detail the historical doses associated with weapons testing in the

Marshall Islands (SC&A 2000a;

SC&A 2002a; and SC&A 2002b). Using many of the same historical reports and records compiled and used by the Atomic Energy Commission (AEC) and the Department of Energy (DOE) and its contractors, along with a large number of reports

that were only recently declassified at that time, we derived doses to the people of

the Northern Atolls associated with the BRAVO test that are significantly higher

than those derived by the government and its contractors. Specifically, we believe

that the whole-body doses associated with the BRAVO test were about two times

higher, that the thyroid doses were many times higher, and that the previous dose

reconstructions neglected to consider the very large doses that were delivered to the

lining of the gastrointestinal tract due to the ingestion of short-lived radionuclides

immediately following the test. With respect to whole-body dose, the following is a reproduction of Table 1 (page 24) of the Administration’s Report:

In coming to its conclusions regarding who is right and who is wrong, the Admin- istration’s Report simply states that ‘‘the weight of expert opinion remains in favor

of an average external dose about one half those estimated by Behling.’’ The fact

is that all of the authors, except Behling et al., made certain assumptions or neglected certain exposure pathways that either missed important doses or neglected

to give the benefit of the doubt to the people of the Marshall Islands. Specifically,

the other studies neglected the dose from the passing plume, neglected the wholebody dose from fallout that deposited directly on the persons’ skin and clothing, did

not consider the unique exposure geometry associated with fallout, and made assumptions regarding the time of arrival of the plume and the duration of fallout

that did not give the benefit of the doubt to the people of the Marshall Islands.

These oversights and errors are discussed in detail in the SC&A reports. However,

the most egregious error made by the other authors is that they all neglected the

hematological clinical data collected from Rongelap evacuees that showed that the

whole-body doses were, more likely than not, about twice the values estimated by

the government and its contractors. The authors of the CRS Report and the Administration’s report do not even attempt to address these critical facts.

SC&A 2002a and 2002c reviewed the clinical and hematological data reported by the U.S. physicians who attended the exposed population groups of Rongelap,

Ailinginae, and Utrik as the most informative data for dose estimates. The results

of these reviews are critical of the dose reconstructions performed by the government, as the following paragraphs explain. In instances when radiation dosimetry is unavailable, many investigators have used the clinical hematological dose-response as a biological dosimeter that may

then be used as a prognostic tool. The medical team at Kwajalein stated their concurrence regarding the dosimetric value of clinical hematological data in the following statements (Cronkite et al. 1956):

Since it is generally agreed that the degree of change in the formed elements of

the blood is the most useful clinical index of the severity of radiation damage, peripheral blood changes were relied upon as a major aid in evaluating the degree of

89

* Note: When the radiation dose is instantaneous (as was the case for Japanese A-bomb victims) or is delivered in a very short time period, a mid-lethal dose of about 450 R is generally

assumed.

radiation injury in each exposed individual. In addition, changes in the mean blood

counts of the exposed groups were followed closely to aid in evaluating the changing

status and probable prognosis of the exposed groups...

Clinical changes that develop in the blood following acute exposure are most evident in select cells that include lymphocytes, neutrophils, and platelets. Among persons exposed on Rongelap, 42, or approximately 50% of exposed individuals, had

neutrophil counts below 2,000 at some time during the observation period, and 10%

had counts below 1,000. In their report, Cronkite et al. (1956) concluded the following:

Some indications of severity of exposure can be gleaned from a comparison of minimum individual counts in Japanese groups in which fatalities occurred. In general,

a significant number of deaths was encountered only in individuals whose

neutrophile count fell below 1000...

...By this criteria, then, the effective dose received by the Rongelap people approached the lethal range. *

On the basis of these conclusions, Cronkite et al. (1956) also had doubts about

the accuracy of the assigned dose, as given in the following statements:

The high initial incidence of nausea, vomiting and diarrhea in the high-exposure

Marshallese group, and the profound neutrophile and platelet count depression indicated a greater effect that might have been expected from 175 R...As indicated in

Chapter IV...and from the degree of leukocyte depression it is possible to estimate

the dose at which a small incidence of mortality would have resulted without treatment. [Emphasis added.]

In summary, SC&A’s revised estimated dose of approximately 400 R to the maximally exposed Group 1 Rongelapese is, therefore, fully consistent with the opinions

expressed by the medical doctors who treated the BRAVO-exposed population

groups. In addition to the above-stated benefit of medical intervention, perhaps a

more compelling reason that explains the absence of mortality is the fact that the

exposure experienced from fallout was not instantaneous but corresponded to a protracted exposure period of more than two days. Animal studies have shown that

under similar protracted exposure conditions, the mid-lethal dose is increased to between 550 to 650 R.

With respect to the doses to the thyroid gland, the disagreement between the

SC&A reports and the reports prepared by the government and its contractors is

equally profound. The CRS Report and Administration’s Report address the followup clinical investigations of the incidence of thyroid cancer in the Marshall Islands,

but are silent on the validity of SC&A’s position regarding the thyroid doses experienced by the people of the northern atolls following the BRAVO test. Using the

same data compiled by government contractors, SC&A has determined that the various government reports significantly underestimated the doses to the thyroid gland.

The underestimates are due to (1) neglecting extensive evidence that, due to relatively low amounts of stable iodine in their diets, the uptake of radioiodine by the

people of the Marshall Islands is likely to have been several times higher than assumed by the government, (2) neglecting evidence that the size of the thyroid gland

of the people of the Marshall islands is smaller than assumed by the government,

(3) failure to properly account for the daily urinary volume excretion fractions in deriving radioiodine intakes, (4) failure to account for thyroid dose due to skin contamination, (5) underestimate of the whole-body dose, which contributes to the thyroid dose, and (6) failure to give the benefit of the doubt to the Rongelap evacuees

regarding questions pertaining to the time urine samples were collected and the

time radioisotopic analysis of urine was performed. As is the case for whole-body

exposures, the final proof that the thyroid gland doses were significantly underestimated by the government comes from clinical data that demonstrate that, in order

for the people of Rongelap to have experienced the amount of thyroid damage observed, the radiation doses to the thyroid gland had to have been much higher than

those estimated by the government. In fact, the BEIR III and BIER V Committees

(NAS 1980 and 1990), the National Academy of Sciences (DCPA 1973) and others

(Larsen et al. 1978, Conrad and Bustad at 1969 Conference) expressed disbelief that

such severe thyroid disorders could have resulted from the relatively low thyroid

doses estimated by the government. It was not until the investigations reported in

SC&A 2000a and 2002a that the reasons behind these apparent incongruities between the government’s reconstructed thyroid doses and the observed clinical effects

on the thyroid glands of the people of the northern atolls were explained.

90

** It is noteworthy that none of these reports are cited in either the CRS Report or the Admin- istration’s Report. It is also important to note that our work would not have been possible without the excellent work and incredible amount of data compiled by Lawrence Livermore National

Laboratory (LLNL) under the direction of Dr. William Robison, and by the Nationwide Radiological Study (NWRS), under the direction of Dr. Steven Simon. We have reviewed their work

in detail, performed independent walk-over surveys of many of the islands on several atolls, collected and analyzed samples of soil and food on Utrik and Ailuk, and have come up with virtually identical results.

There were many other oversights in the government’s reports related to internal doses from the ingestion of radionuclides that are described in SC&A 2002 a and

b. However, by far, the greatest of these oversights was neglecting the dose to the

intestinal mucosa from short-lived, highly insoluble radionuclides that were ingested

by the people of Rongelap immediately following the arrival of the BRAVO plume

and prior to their evacuation. We estimated that the doses to the intestinal mucosa

were hundreds of rem. These dose estimates were recently confirmed in a paper by

Moeller and Sun 2002. This issue is not mentioned in the CRS Report or the Administration’s Report.

What does all this mean with regard to changed circumstances? In my opinion, it means that many errors and oversights were made by the government in assessing the health impacts of weapons testing at the time of the Section 177 Settlement

Agreement. As such, explicit consideration must be given to this new information

in achieving an equitable resolution regarding this aspect of the Petition.

Changes in Radiation Protection and Cleanup Standards

SC&A has prepared a number of reports addressing the cleanup needs and associ- ated costs for several of the northern atolls, including Enewetak (SC&A 1999a), Bikini (SC&A 1999b), Rongelap (SC&A 2000b), and Utrik (SC&A 2002c). These reports were litigated before the Nuclear Claims Tribunal and some have been ruled

upon by the Tribunal. **

SC&A’s reports included the following:

An evaluation of the potential radiation doses and radiological health risks to the current populations on the atolls and the populations that may resettle many of the

atolls in the future due to residual contamination in the soil, food, and water on

the atolls. The results of the evaluations were compared to the radiation protection

criteria used in the U.S. for cleanup of sites contaminated with radioactive material,

and adopted by the Nuclear Claims Tribunal for use by the Republic of the Marshall

Islands; and

An evaluation of the costs associated with the remediation of the islands to the

U.S. cleanup criteria using a broad range of alternative strategies. The evaluations

included recommended remediation strategies for each atoll and their associated

costs.

The results of these recommendations represent a changed circumstance because the cleanup criteria and cleanup costs determined by SC&A and ruled upon by the

Tribunal were not adequately understood at the time of the Section 177 Settlement

Agreement. Hence, by definition, the rulings of the Nuclear Claims Tribunal can be

considered a changed circumstance. The CRS Report and the Administration’s Report take exception to SC&A’s findings and recommendations, and the rulings of the Nuclear Claims Tribunal, for reasons that I believe are not related to scientific issues, but are more appropriately

categorized as regulatory issues. I believe the authors of the CRS Report and the

Administration’s Report would agree with the radiological data we used in our analyses, because the data were compiled by government contractors and have undergone extensive quality assurance and peer review. I believe the authors of the CRS

Report and the Administration’s Report would also agree with the methods employed in our reports for performing cost analyses of alternative cleanup strategies,

because the unit costs that we used were based on data and reports prepared by

the Bikini Atoll Rehabilitation Committee (BARC), which was established at the request of Congress (House Report 99-450) to report independently on the feasibility

and cost of rehabilitating Bikini Atoll. I also believe that, if the authors of the CRS

Report and the Administration’s Report agreed that the regulations and guidance

promulgated by the U.S. Environmental Protection Agency are applicable to cleanup

decision-making in the Marshall Islands, they would agree with the results and conclusions of our work and the findings of the Tribunal. However, throughout the CRS

Report and the Administration’s Report, the authors take exception to the use of

EPA criteria and guidance as the basis for cleanup decision-making in the Marshall

Islands. Therefore, this is a matter that is more appropriately addressed by the

Nuclear Claims Tribunal. However, in my opinion, if the Marshall Islands were a

State within the U.S., there is little doubt that cleanup of the northern atolls would

91

be required to meet the same criteria that are used to clean up sites contaminated

with radioactive material in the U.S.

Notwithstanding one’s opinion regarding the appropriate criteria and methodolo- gies that should be employed in determining the types and costs of cleanup of the

current levels of residual radioactivity in the Marshall Islands, there is absolutely

no doubt that the regulations governing radiation protection of the public and the

criteria for cleanup of sites contaminated with radioactive material in the United

States have changed dramatically since the Section 177 Settlement Agreement was

established. Rather than repeat these changes here, I would refer the Committee

to Appendix D of the Petition.

In conclusion, it is noteworthy that the amount of radioactive material in soil, food, and water of the Marshall Islands has not increased since the establishment

of the Section 177 Settlement Agreement. In fact, the amount of radioactive material in the environment has declined somewhat due to primarily radioactive decay.

However, since the establishment of the Section 177 Settlement Agreement, we have

gained a more complete understanding of the radiation exposures and potential

health impacts that were experienced by the people of the Marshall Islands due to

weapons testing. These exposures and their potential health consequences are much

larger than previously believed. In addition, subsequent to the establishment of the

Section 177 Settlement Agreement, the radiation protection standards for members

of the public and the cleanup criteria for sites contaminated with radioactive material changed dramatically. The standards are a lot more protective now than they

were at the time of the Agreement. I believe that these represent changed circumstances that could have a direct bearing on the cost of medical care and certainly greatly increase the cost of remediation.

References:

1969 Conference, ‘‘Proceedings of the Second Interdisciplinary Conference on Selected Effects of General War Volume II,’’ Upton, A.C., and Brues, A.M. CoChairmen, DASA 2019-2, 1969.

Cronkite, E.P., Bond, V.P., and Dunham, C.L., 1956, ‘‘Some Effects of Ionizing Radiation on Human Beings: A Report on the Marshallese and Americans Accidentally Exposed to Radiation From Fallout and a Discussion of Radiation Injury

in the Human Being,’’ U.S. Atomic Energy Commission, Washington, D.C.

DCPA 1973, ‘‘Response to DCPA Questions on Fallout,’’ DCPA Research Report No.

20, Defense Civil Preparedness Agency.

Larsen, P.R. et al., 1978, ‘‘Thyroid Hypofunction Appearing as a Delayed Manifestation of Accidental Exposure to Radioactive Fallout in a Marshallese Population,’’

Late Biological Effects of Ionizing Radiation, International Atomic Energy Agency, Vienna, 1978.

Moeller, D. and Sun, C. 2002, ‘‘Absorbed Doses to the Stomach Walls and Colin of

the Residents of Rongelap and Utrik Atoills due to their Initial Three-Day Intake of Radioactive Fallout from the BRAVO Detonation, Presented at the 47th

Annual meeting of the Health Physics Society, June 16-20, 2002.

NAS 1980, ‘‘The Effects on Populations of Exposure to Low Levels of Ionizing Radiation,’’ BEIR III, National Academy of Sciences, Committee on the Biological Effects of Ionizing Radiation, Washington, D.C., 1980.

NAS 1990, ‘‘The Effects on Populations of Exposure to Low Levels of Ionizing Radiation,’’ BEIR V, National Academy of Sciences, Committee on the Biological Effects of Ionizing Radiation, Washington, D.C., 1990.

SC&A 1999a, ‘‘Part 1 -- Regarding the Potential Radiation Doses and Health Risks

to a Resettled Population of Enewetak Atoll and an Evaluation of the Costs and

Effectiveness of Alternative Strategies for Reducing the Doses and Risks,’’ Prepared by John Mauro, Hans Behling, and Robert Anigstein of S. Cohen & Associates, March 23, 1999.

SC&A 1999b, ‘‘Statement Before the Nuclear Claims Tribunal Regarding the Potential Radiation Doses and Health Risks to a Resettled Population of Bikini Atoll

and an Evaluation of the Costs and Effectiveness of Alternative Strategies for

Reducing the Doses and Risks,’’ Prepared by John Mauro, Hans Behling, and

Robert Anigstein of S. Cohen & Associates, September 10, 1999.

SC&A 2000a, ‘‘Reassessment of Acute Radiation Doses Associated with BRAVO

Fallout,’’ Prepared by Hans Behling, John Mauro, and Kathleen Behling of

S. Cohen & Associates for William Graham, Public Advocate, Nuclear Claims

Tribunal, Republic of the Marshall Islands, May 2000.

SC&A 2000b, ‘‘Statement Before the Nuclear Claims Tribunal Regarding the Potential Radiation Doses and Health Risks to a Resettled Population of Rongelap

Atoll, Rongerik Atoll, and Ailinginae Atoll and an Evaluation of the Costs and

Effectiveness of Alternative Strategies for Reducing the Doses and Risks,’’ PreVerDate 11-MAY-2000 13:32 Oct 24, 2005 Jkt 000000 PO 00000 Frm 00097 Fmt 6633 Sfmt 6621 J:\DOCS\21448.TXT HRESOUR1 PsN: HRESOUR1
92

pared by John Mauro, Hans Behling, and Robert Anigstein of S. Cohen Associates, August 2000. SC&A 2002a, ‘‘Final Report -- Reassessment of Acute Radiation Doses Associated

with BRAVO Fallout at Utrik Atoll,’’ Prepared by Hans Behling, John Mauro,

and Kathleen Behling of S. Cohen Associates for Utrik Local Government

Council, Republic of the Marshall Islands, May 2002 SC&A 2002b, ‘‘Radiation Exposures Associated with the U.S. Nuclear Testing Pro- gram for Twenty Atolls/Islands in the Republic of the Marshall Islands,—Prepared by Hans Behling, John Mauro, Nicole Briggs, and Kathleen Behling of

S. Cohen Associates for William Graham, Public Advocate, Nuclear Claims Tribunal, Republic of the Marshall Islands, May 2002. SC&A 2002c, ‘‘Final Report -- Statement Before the Nuclear Claims Tribunal Regarding the Potential Radiation Doses and Health Risks to a Resettled Population of Utrik, Taka, Bikar, and Taongi Atolls and an Evaluation of the Costs

and Effectiveness of Alternative Strategies for Reducing the Doses and Risks,’’

Prepared by John Mauro and Hans Behling of S. Cohen Associates, January

2002.

Response to questions submitted for the record by John Mauro, Ph.D., CHP, Senior Vice President, S. Cohen & Associates

Questions Submitted by Chairman Richard W. Pombo:

Question 1: If the dose estimates cited by you are correct, how many more cancers might be expected above the 530 cited by the National Cancer

Institute? Would this increase in potential cancers significantly change

the total compensation awarded or future awards?

Response:

As I understand the 177 Agreement, a certain amount of funds were granted to the Republic of the Marshall Islands to be used to compensate claimants with certain presumptive cancers. The available funding to compensate claimants is rapidly

being exhausted, and many claimants have not received full compensation. At the

time of the 177 Agreement, there was insufficient knowledge to predict the number

of cancers that had occurred to date or may occur in the future due to radiation

exposures associated with weapons testing. As a result of investigations performed

by the National Cancer Institute and work performed by Sanford Cohen & Associates, we now have a much better idea of the total number cancers that may be experienced by the people of the Marshall Islands due to weapons testing. The estimate

made by the National Cancer Institute appears to have been based on historical

studies that we believe underestimated the doses to the whole body (by about a factor of 2), to the thyroid gland (by about a factor of 10 to 20), and disregarded the

doses to the gastrointestinal tract and other internal organs. If the National Cancer

Institute took into consideration the possibility that the doses upon which their estimate of cancers were based may have been too low, they would have derived higher

estimates of the number of cancers. I suspect that, had the NCI used dose estimates

that were more in accord with SC&A’s findings, NCI would have estimated perhaps

twice as many cancers. Under the current compensation program, all individuals with specified cancers are supposed to be compensated. Accordingly, in theory, the total amount of compensation would not change no matter the number of projected cancers, since compensation decisions are supposed to be based on the existence of real cancers and

not anticipated cancers. However, the total amount of compensation is likely to be

substantially greater that previously anticipated in light of the recent investigations

performed by NCI and SC&A.

Question 2: Which criteria for cleanup have changed in the U.S. since the

Compact’s enactment in 1986, and how would those criteria apply to the

cleanup of the RMI if it were part of the U.S.?

Response:

Since 1986, the overall radiation protection standards for members of the general

public in the U.S. have decreased from 500 mrem/yr to 100 mrem/yr. However, more

importantly, the cleanup criteria for sites contaminated with radioactive material

have decreased from 500 mrem/yr to 15 mrem/yr. The cleanup criterion of 15 mrem/

yr is based on EPA standards currently being used to cleanup sites on the National

Priorities List, including DOE facilities. It is my opinion that, if the Marshall

Islands were a state in the United States, EPA would require cleanup of the contaminated atolls to levels corresponding to 15 mrem/yr for those individuals that

93

have a high potential for exposure, such as individuals whose diet consists predominantly of locally grown foods.

Question 3: A particular request in the RMI Petition relates to ‘‘safely containing radiation’’ which would seem to imply the living conditions near

Runit Dome. Can you tell the Committee about this facility and if continued adverse effects exist from its existence?

Response:

Large quantities of radioactive material associated with the cleanup of Enewetak

Atoll are contained in Runit Dome. However, the amount of radioactive material inside the dome is small compared to the amount of radioactive material that is contained within the bottom sediments of the lagoon. Hence, even if Runit Dome failed

and all its radionuclides were released and deposited in the sediment in the lagoon,

there would not be a substantial increase in the radionuclide inventory in the lagoon. However, if Runit Dome failed and released its inventory of radionuclides,

those radionuclides would not be immediately transferred and buried in the bottom

sediment. They would first be dispersed in the water and gradually settle to the bottom of the lagoon. During this in-transit time period, the water in the lagoon in the

vicinity of Runit Dome would become heavily contaminated. The outcome would be

an increase in the radiation exposures to people who harvest fish and shellfish as

part of their diet. The extent of the additional exposures has not yet been determined.

The CHAIRMAN. Thank you.

Dr. Simon.

STATEMENT OF STEVEN L. SIMON, Ph.D.,

REPRESENTING HIMSELF, WASHINGTON, D.C.

Dr. SIMON. Thank you, Mr. Chairman. If you would indulge me

one word outside of my presentation, I’d like to say yokwe to the

Marshallese that are here today. I know most of them and I

haven’t seen them in about 10 years, so I would like to say hello

to them.

Thank you for your invitation to appear before the Joint Committee today. I’m Steven L. Simon, Ph.D. I am presently employed

by the National Cancer Institute, National Institutes of Health, but

I am here today solely in a personal capacity. I am only representing myself. My statements today have not been prepared or

reviewed by my present employer, nor have they been reviewed

there. Hence, this statement does not represent their opinion.

I will begin with some relevant credentials. In addition to a

Ph.D. in Radiological Health Sciences, I have about 28 years experience in the field of radiation and medicine, radiation epidemiology and radiation protection. I was employed by the Government

of the Marshall Islands from early 1990 through mid 1995 as the

sole radiation scientist in residence. In that position I directed the

Marshall Islands’ Nationwide Radiological Study, funded under

Section 177 of the Compact of Free Association, from its inception

through its completion, and I designed and oversaw the construction of the first permanently based radiological measurements laboratory in the Marshall Islands. I was also a member of the 3-person Scientific Management Team for the U.S. funded Rongelap Resettlement Project, and I was Director of the Nationwide Thyroid

Disease Study in the Marshall Islands as well.

Since then I directed the radiological survey of Johnson Island.

That was the site that Mr. Abercrombie saw the nuclear test detonated from.

94

In addition, I have been on the International Atomic Energy

Agency surveys of nuclear test sites in Algeria and in French Polynesia.

I have an extensive publication resume, and have authored 18

peer-reviewed papers, 19 book chapters and one book, all on issues

related to radiation in the Marshall Islands.

The purpose of this testimony is to clarify what I believe are the

seminal findings of the Nationwide Radiological Study and the Nationwide Thyroid Disease Study, two studies that I directed.

First let me say that I’m pleased to see the findings of these

studies being considered in this hearing. To me this validates the

most important characteristic of those studies. They were scientific

in nature, objective in their conclusions, and they were designed

and conducted without political purpose in mind.

In passing, I would like to note that in early 1995 the Parliament, the Nitijela of the Marshall Islands, enacted a resolution

to formally reject the findings of the Nationwide Radiological Study

they had sponsored.

The primary goal of that study was to document the geographic

distribution of residual radioactivity from nuclear testing conducted

at Bikini and Enewetak, and to assess the present and future

levels of residual radioactivity. We were very successful in doing

that. The findings were judged to be valid by three international

expert panels including one appointed by the RMI Government.

Despite that there are over 1,000 islands of varying size in RMI,

there’s not a single island larger than a bare sandbar where at

least one radiation measurement was not made, and while larger

islands in the 29 atolls received dozens of radiation measurements.

I would like to refer to Figure 1, please. Here it shows the maximum observed cesium-137 measured in soil by our study at each

atoll. Cesium is a marker of radioactive fallout. It has a half life

of 30 years.

The study found that at atolls located south of 9 degrees latitude,

they had nearly the same level of residual activity, and that it was

at a level indistinguishable from that deposited in global fallout in

the mid Pacific region. In the study’s report I reported there were

10 atolls for which we could not conclusively determine whether

they had received local fallout. The Nuclear Claims Tribunal interpreted that to be a failing as a result of inadequate funding of the

study. That’s not the interpretation that was intended, nor was it

a failing. The intended interpretation was the following.

If there is any locally produced fallout contamination at those locations today, it is very, very small, so small in fact that it’s impossible to distinguish it from global fallout that originated at nuclear

test sites elsewhere in the world. Our inability to detect any excess

fallout was a result of the very small amount likely to have been

deposited there.

At atolls north of 9 degrees latitude, we observed an increase in

the maximum level of cesium, and it reached a maximum value on

the northern end of Rongelap Atoll, on Bikini Island, and on the

north end of Enewetak Atoll. The observable increase above the

global background at two atolls between 9 and 10 degrees north,

that is Erikub, which is uninhabited, and Wotje, this can be considVerDate 11-MAY-2000 13:32 Oct 24, 2005 Jkt 000000 PO 00000 Frm 00100 Fmt 6633 Sfmt 6602 J:\DOCS\21448.TXT HRESOUR1 PsN: HRESOUR1
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ered to be new information, although it is consistent with the 1995

AEC report referred to here today.

Atolls located north of Wotje were included in the 1978 Department of Energy sponsored aerial radiological survey. The Nationwide Radiological Study sponsored by the RMI did not—the findings did not appreciably differ from the DOE measurements.

Hence, significant new information about the contamination of the

northern atolls was not obtained, except that we did validate the

DOE measurements and we learned much more detail about the

contamination at Rongelap during the course of the Rongelap resettlement project.

These findings have implications for future radiation protection

requirements, but I will refer you to my written statement due to

lack of time.

If you will allow me, I would briefly like to turn to the Nationwide Thyroid Disease Study that I directed in collaboration with

medical specialists from England and Japan.

Studies elsewhere indicate that exposure to radioactive iodine at

young ages can be responsible for an increase in thyroid cancer and

possibly benign nodules. In addition to aiming to provide a public

health service by providing free thyroid examinations, we set out

to examine the hypothesis put forth by Hamilton et al. concerning

the prevalence of thyroid nodules among those born before the 1954

BRAVO test. His finding was that prevalence of nodules decreased

with increasing distance from Bikini. His interpretation was that

exposure to radioiodines was likely much broader than believed

prior to his publication in 1987.

Our study examined 4,762 Marshallese born before the end of

the nuclear testing, about twice as many as did the Hamilton

study. Our examinations used palpation, which is feeling of the

neck, as did Hamilton, and in addition, we used high resolution

ultrasound. We found a relatively high frequency of benign nodules

and thyroid cancer consistent with many observations by other investigators on many islands throughout the Pacific. In fact, the scientific literature indicates that the highest observed prevalence of

thyroid cancer in the world is found at locations in the Pacific

where there is no evidence of exposure to radioactive iodine.

Interestingly, the observations of the thyroid study did not confirm the observations of Hamilton. That is, we did not find a significant decrease in nodule prevalence with increasing distance

even though we have confirmed that contamination does decrease

at increasing distance, as evidenced by this plot.

I would like to note here that although our study did not confirm

Hamilton’s hypothesis, it did not disprove it. However, replication

of scientific findings is considered part of the gold standard in scientific research, and our study that was larger and used more sensitive techniques to detect nodules, could not replicate those findings.

Due to time limitations, this concludes my statement. I hope you

found this information to be useful. I will be pleased to answer

your questions.

[The prepared statement of Dr. Simon follows:]

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Statement of Steven L. Simon, Ph.D., Washington, D.C.

Thank you, Mr. Pombo, for your invitation to appear before the joint Committees today. I am Steven L. Simon, Ph.D.. I am employed by the National Cancer Institute, National Institutes of Health (NIH), but I am here today solely in a personal

capacity. I am only representing myself. My statement today has not been prepared

or influenced by my present employer, nor has it been reviewed at the NIH. Hence,

this statement does not necessarily represent the opinion of the NIH. I request that

my statement be entered into the record. I would first like to present my credentials. In addition to a B.S. and M.S. degree in Physics and Radiological Physics, respectively, and a Ph.D. in Radiological Health

Sciences, I have approximately 28 years experience in the field of radiation epidemiology, radiation treatment of cancer, and radiation protection. My primary fields of

expertise are radiation measurement and radiation dosimetry. I was employed by

the Government of the Marshall Islands from early 1990 through mid-1995 as the

sole radiation scientist in residence in the RMI. In that position, I directed the Marshall Islands Nationwide Radiological Study from its inception through its completion and designed and oversaw the construction of the first permanently based radiological measurements laboratory in the Marshall Islands. During that time, I was

also a member of the 3-person scientific management team for the U.S.-funded

Rongelap Resettlement Project and was director of the Nationwide Thyroid Disease

Study. Since leaving the RMI, I directed the radiological survey of Johnston Island,

another U.S. Pacific nuclear test site. I was a member of the International Atomic

Energy Agency (IAEA) survey teams of the French nuclear test sites in Algeria and

in French Polynesia. I was the lead dosimetrist in the well known epidemiologic

studies of downwinders conducted by the University of Utah and am presently the

lead dosimetrist in the NCI’s current study of thyroid disease in areas adjacent to

the former Soviet nuclear test site in Kazakhstan. I formerly have had research and

academic faculty appointments at the University of New Mexico, University of Utah,

and University of North Carolina at Chapel Hill. Presently, I hold adjunct faculty

appointments at Colorado State University and Baylor College of Medicine. I am an

elected member of the National Council on Radiation Protection and Measurements.

I am a member of the editorial board of Health Physics, the most prestigious journal

in this country in the field of radiation protection and have been on that editorial

board for the last 13 years. I have an extensive publication resume and have authored 18 peer-reviewed papers, 19 reports or book chapters and 1 book, all on

issues related to radiation in the Marshall Islands.

The purpose of my testimony is to clarify what I believe are the seminal findings

of the Nationwide Radiological Study and the Nationwide Thyroid Disease Study,

two studies I directed. First, let me say that I am pleased to see the findings of the

Nationwide Radiological Study (NWRS) being considered in this hearing even

though they are being cited by the U.S. Government and the RMI Government in

support of differing views. To me, this validates the most important characteristic

of that study: that it was scientific in nature, objective in its conclusions, and that

it was designed and conducted without any political purposes in mind.

Despite my gratification at seeing the recognition of the NWRS data, I am surprised to see that now, more than 10 years after the studies were completed, the

RMI Government, for the first time, publicly recognizes the data. In early 1995, following the completion of the studies I directed, the Nitijela (parliament) of the Marshall Islands invited me to present the findings to them while they were in session,

but upon arriving at their chambers on more than one occasion, they never actually

allowed me to make the presentation. Near to that time, Mr. Bill Graham of the

Nuclear Claims Tribunal provided in-person oral testimony to the Nitijela and his

comments served to discredit the study. Following his statement, the Nitijela enacted a resolution to formally reject the findings of the NWRS. Neither the Nuclear

Claims Tribunal website nor the RMI Embassy website has acknowledged the study

or made its findings available.

Findings of publicly funded scientific investigations should be published and the

information made available. To that end, I went to great effort to publish the findings of the NWRS without any salary or financial support. In 1997, I was one of

two appointed editors of a special issue of the journal, Health Physics, completely

devoted to the radiological consequences in the Marshall Islands. The issue included

23 papers by 60 authors in addition to me. The Marshall Islands Government, for

reasons never apparent to me, tried to stop publication of that issue. This issue has

been available in its entirety on the internet [1] since a short time after publication,

courtesy of Health Physics and the Department of Energy. In addition, I have made

the summary report of the NWRS available for the last 8 years online [2], courtesy

of the Baylor College of Medicine that maintains the website.

97

The primary goal of the NWRS was to document the geographic distribution of residual radioactivity from the nuclear testing conducted in Bikini and Enewetak

and to assess the present and future levels of residual radioactivity. The NWRS was

extremely successful in doing that [3, 4]. In addition to being published in the scientific peer reviewed literature, the data was reviewed either in its entirety or in

parts, by three expert international groups, including the RMI Government appointed Scientific Advisory Panel and the IAEA panel to review the radiological situation of Bikini atoll. There has not been a single scientifically based challenge to

its quantitative findings or to its degree of comprehensiveness. Despite that there

are over 1,000 islands of varying size in the RMI; there is not a single island larger

than a bare sandbar where at least one radiation measurement was not made.

Moreover, the largest and most important islands in the 29 atolls were the sites of

dozens of radiation measurements. Any claim made, that there might still be unidentified hotspots, is unlikely to be true due to comprehensive sampling based on

the relative land area of each atoll and the typical variability of measurements, and

use of systematic grid-based sampling plans. I make the claim, that if one could find

a location with higher radiation level than was recorded by the NWRS, it would be

of inconsequentially small size. One of our areas of emphasis was measurement of Cesium-137 (Cs-137) in the terrestrial environment, e.g., soil, fruits, etc. Cs-137 has been measured worldwide as

a marker of fallout contamination since it is only produced by nuclear fission. It has

a 30-year half-life and it is conveniently detected by modern instruments. The

NWRS documented the average as well as the range of contamination at all atolls

of the Marshall Islands, even those islands and atolls traditionally uninhabited. We

measured all other detectable gamma emitting radionuclides as well, though, in general, they are of little interest so many years after testing. In addition, we measured

fallout plutonium in soil. Cs-137 was detectable at all atolls, but this is hardly surprising since it is detectable virtually anywhere in the world as a consequence of

fallout from atmospheric nuclear tests conducted throughout the world. We compared the measured levels of Cs-137 to the value expected in the mid-Pacific region

from the deposition of global fallout to discern the atolls where locally produced fallout was in excess of the background from global fallout. At this point, I would now

like to refer to Fig. 1 which presents the measurements of Cs-137 in soil from the

NWRS, ordered from left to right by the highest observed value at each atoll. The

light yellow horizontal band represents the range of values of Cs-137 (as of 1994)

deposited in this region of the Pacific from global fallout. You will also note that

the vertical scale is logarithmic, meaning that each major horizontal line is 10-fold

greater than the horizontal line below it. The NWRS study found that atolls located south of nine degrees north latitude had nearly the same levels of residual fallout activity and that it was at a level indistinguishable from that expected from global fallout. In the study’s summary report to the RMI Government, I reported that there were 10 atolls for which the

study could not conclusively determine whether they had received fallout from the

tests conducted in the Marshall Islands. I later learned from a public statement by

the now-deceased NCT Chairman, Oscar de Brum, that the NCT interpreted that

to be a failing of the study as a result of inadequate funding. That is not the interpretation that was intended, nor was it a failing of any kind. The intended interpretation was the following: if there is any locally produced fallout contamination at

those locations, it is very, very small—so small, in fact, that it is indistinguishable

from the global fallout that originated from nuclear testing worldwide. Our inability

to detect any excess fallout was a result of the diminutive amount of local fallout

deposited there. Here, it should be noted that we did not use crude instruments that

lacked sensitivity. Our measurements relied on gamma spectrometry with liquid-nitrogen cooled high-purity germanium detectors. These devices represent, even today,

the state-of-the-art gamma radiation detection instrument.

At locations north of 9° north latitude, we observed a moderately smooth increase

in the average and maximum level of Cs-137 measured and it reached a maximum

value on the northern end of Rongelap Atoll, on Bikini Island, and the north end

of Enewetak Atoll. That there was a uniform degree of contamination at latitudes

south of 9° N, and that it was about the same magnitude as that from global fallout

may not have been a surprise to some knowledgeable scientists, though in all honesty, I did not have preconceived expectations since there were few historical measurements on which to base an a priori opinion. The observable increase in residual

fallout activity above the global background level, at latitudes between 9° and 10°

north (i.e., at Erikub [uninhabited] and at Wotje) can be considered to be new information, though one could have deduced it from the 1955 AEC report [5] following

the CASTLE series of tests. Atolls located north of Wotje (latitude of 9.5° N) were

included in the 1978 Department of Energy (DOE)-sponsored aerial radiological surVerDate 11-MAY-2000 13:32 Oct 24, 2005 Jkt 000000 PO 00000 Frm 00103 Fmt 6633 Sfmt 6621 J:\DOCS\21448.TXT HRESOUR1 PsN: HRESOUR1
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vey. Since the NWRS measurements did not appreciably differ from the DOE measurements (except at the lowest contamination levels where the NWRS had somewhat greater sensitivity [6]), there was not a great deal of new information for the

northern atolls obtained, except that the DOE measurements were validated, and

much more detail about the contamination at Rongelap was obtained during the

course of the Rongelap Resettlement Project. But the fact that residual fallout contamination increased north of Wotho to a maximum at Bikini, northern Enewetak

and northern Rongelap, had been documented in the DOE survey of 1978. Before moving on, I would like to comment on the relationship of the NWRS data to estimating past radiation doses, as well as the value of dose estimation to the

changed circumstance petition. In my view, the data obtained in the NWRS, supplemented with other information, can be used for estimating past radiation doses with

the understanding that individual estimation is highly uncertain. It is also my view,

however, that estimates of radiation dose, new or old, while not totally irrelevant,

are not terribly pertinent to the discussion of changed circumstances. My reasoning

is two-fold. First, the compensation plan, as developed by the NCT, has no criterion

for admissibility based on radiation dose. That makes dose, largely irrelevant from

their standpoint. Second, the radiation-related cancer burden for the nation as a

whole is likely to be relatively small compared to that from naturally occurring cancers. Hence, a well budgeted compensation plan of the sort implemented by the NCT

would primarily need to plan to pay for naturally occurring cancers. The number

of radiation related cases that can only be predicted from dose adds only a modest

increment.

Now let me briefly address what the measurements of the NWRS imply in terms of future radiation protection requirements. First, it should be realized that measurement of any amount of fallout radioactivity should not be cause for alarm; everyone in the world lives with it today. As a comparison, here in Washington, DC, the

amount of Cs-137 per unit area of ground that is attributed to global nuclear testing, is about five-times that in the Marshall Islands [7]. The data of the NWRS was translated into terms of annual whole-body external effective dose and into annual external plus internal dose assuming that

Marshallese eat a diet of 75% locally grown food, a scenario that is unlikely today

for most Marshallese. The external dose is received from gamma rays emitted from

fallout that is still in the soil, while the total dose calculation includes the dose from

Cs-137 that would be ingested from fruits that can absorb Cs-137 from the soil via

plant roots.

The external annual effective dose could exceed 100 mrem per year at only a few locations: on northern Enewetak Atoll, northern Rongelap Atoll, and on some

islands of Bikini Atoll. The value of 100 mrem per year is accepted internationally

as guidance for limiting exposure to the public. It is about equal, for example, to

the amount of radiation we receive in the U.S. from natural terrestrial and cosmic

ray radiation. These findings are not different than predicted from the 1978 DOEsponsored aerial survey of the Marshall Islands.

Including the dose contribution from ingestion of Cs-137 in locally grown foods

might lead to annual effective doses in 1994 (though would be 22% lower today due

to radiological decay) in excess of 100 mrem per year on Rongerik, Enjebi Island

of Enewetak, northern Rongelap, and Bikini Island. These findings do not differ

from findings available from the 1978 DOE survey except possibly in assuming a

diet so highly reliant on local food. These various findings are the basis of the statements by the NWRS and its Scientific Advisory Panel that:

‘‘...the current levels of radioactive contamination of the territory of the

Marshall Islands pose no risk of adverse health effects to the present generation. Similarly, on the basis of current genetic knowledge, we judge the

risk of hereditary diseases to future generations of Marshallese to be no

greater than the background risk of such diseases characteristic of any population.

Four atolls have been identified where exposure rates are elevated to the

extent that remedial actions are indicated for some of the islands...’’ [3].

Now, I would like to briefly turn to the Nationwide Thyroid Disease Study

(NWTDS) that I directed in collaboration with medical specialists from England and

Japan. Part of the motivation for that study stems from the well-known sensitivity

of the thyroid gland of young children to ionizing radiation. Studies elsewhere indicate that exposure to radioactive iodine released from nuclear tests might be responsible for an increase in thyroid cancer. In addition to aiming to provide a public

health service by providing free examinations, we set out to examine the hypothesis

put forth by Hamilton et al. [8] concerning the prevalence of thyroid nodules among

2273 inhabitants of 14 of the 24 inhabited atolls born before the 1954 BRAVO test.

His finding was that the prevalence of nodules decreased among that group with

99

increasing distance from Bikini. His interpretation was that exposure to

radioiodines was likely much broader than believed prior to his publication of 1987.

The NWTDS examined 4762 Marshallese born before the end of nuclear testing in

the Marshall Islands. Our examinations used palpation (feeling of the neck), as did

Hamilton, though we also used high-resolution ultrasound that Hamilton did not.

We found a relatively high frequency of thyroid cancer and benign thyroid nodules

and we provided written medical evidence of each finding to each person examined,

the Majuro Hospital, and the Nuclear Claims Tribunal. The high frequency of nodules and thyroid cancer, is consistent with observations by other investigators for

island locations throughout the Pacific where there is no evidence of exposure to radioactive iodine. Of more relevance here, is that the observations of the NWTDS did

not confirm the hypothesis of Hamilton et al., i.e., we did not find a significant decrease in nodule prevalence with increasing distance [9, 10]. Though our data suggested that the occurrence of thyroid cancer might be related to our preliminary estimates of radiation dose, there was no such evidence when the observations from

Utrik atoll were removed from the data set. I would like to note here that because

our study did not confirm Hamilton’s hypothesis, it does not disprove it. However,

replication of scientific findings is considered part of the gold standard in scientific

research and our study that was larger and used more sensitive techniques to detect

nodules, did not replicate his findings.

Due to time and space limitations, this concludes my statement. I hope you have

found this information to be useful.

REFERENCES

1. http://www.eh.doe.gov/health/marshall/marsh/journal/

2. http://radefx.bcm.tmc.edu/marshall—islands/

3. Simon SL, Graham JC. Findings of the Nationwide Radiological Study: Summary Report, submitted to the Cabinet of the Government of the Republic of

the Marshall Islands. December 1994. Ministry of Foreign Affairs, Government of the Republic of the Marshall Islands, Majuro, Marshall Islands,

96960.

4. Simon SL, Graham, JC. Findings of the First Comprehensive Radiological

Monitoring Program of the Republic of the Marshall Islands. Health Physics

73(1):66-85, 1997.

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5. Breslin, AJ, Cassidy, ME. Radioactive debris from Operation Castle, islands

of the mid-Pacific. New York: New York Operations Office, Health and Safety

Laboratory, U.S. Atomic Energy Commission. NYO-4623 (Del.). 1955.

6. Simon SL, Graham, JC. A comparison of aerial and ground level spectrometry

measurements of 137Cs in the Marshall Islands. Environmental Monitoring

and Assessment -- An International Journal 53(2): 363-377 1998.

7. Beck HL, Bennett, BG. Historical overview of atmospheric nuclear testing and

estimates of fallout in the continental United States. Health Physics. Health

Physics 82(5):591-60885, 2002.

8. Hamilton TE, van Belle G, LoGerfo JP. Thyroid neoplasia in Marshall

Islanders exposed to nuclear fallout. JAMA 258:629-636. 1987.

9. Takahashi T, Trott, K, Fujimori K, Nakashima N, Ohtomo H, Schoemaker

MJ, Simon, SL. Thyroid Disease In The Marshall Islands, Findings from 10

Years of Study. Tohoku University Press, Sendai, Japan. 2001.

10. Gilbert E.S., Land C.E., Simon S.L. 2002. Health Effects from Fallout. Health

Phys 82(5): 727-735.

Response to questions submitted for the record by Dr. Steven Simon

Question 1: You state that estimates of radiation dose, which have been debated here, are not crucial when figuring ‘‘changed circumstances.’’

Holding that to be true, was the geographic distribution of fallout the

best guide for the Tribunal in awarding those that may have even had

naturally occurring cancers in the RMI?

REPLY to Chairman Pombo:

I am happy to answer your question. To do so completely, I would like to give

a little background to my statement about which you are inquiring.

First, I do not personally endorse a compensation plan such as that enacted by

the U.S. RECA law or by the Nuclear Claims Tribunal, whereupon the likelihood

that radiation caused an individuals cancer is not considered. Such plans are usually touted to prevent any deserving individual, i.e., a person with cancer actually

caused by radiation exposure, from not receiving their just compensation. The net

effect is, of course, great expense to make payments to the general population who

have no radiation related disease as well as a potential dilution of the payments

for those who are truly deserving. Such a situation is inevitable when the number

of radiation related cancers are a small number compared to the number of naturally occurring cancers. This is the reason why in about 1992 or thereabouts, I testified at a NCT hearing that individual compensation should be related to an individual’s risk, i.e., to their radiation exposure. Such ideas, as you know, were rejected

by the NCT. Here I might digress slightly to say that such ‘‘probability of causation’’

calculations could be done much more simply for the NCT than those required for

the U.S. energy workers under their compensation plan. The reason they could be

done more simply is twofold: (1) There was little diversity of diet or lifestyle in the

RMI in the 1950s; hence, persons of the same age could be assumed as similar in

terms of all exposure variables except location. (2) In the RMI in the 1950s, there

was little between-atoll migration, except for reasons of marriage, and as the NCI

calculations indicated, most of the exposure was received either in 1954 or 1958.

Hence, the age and whereabouts of a Marshallese in those two years would be the

primary determinant of dose and of radiation risk.

Because there are no requirements for compensation under the current NCT statutes, other than having medical validation of a cancer on their list and having lived

sometime and anywhere in the Marshall Islands during the years of nuclear testing,

the radiation dose a person received is irrelevant for any individual award. That is

the reason that I said in my May testimony before the House committee that radiation dose is not crucial to a determination of ‘‘changed circumstances.’’ Regardless

of how poor or good the historical estimates of radiation doses were, or what previously classified literature might now be available to shed light on past radiation

doses, or what recent dose calculations indicate, radiation doses received from the

nuclear testing have no bearing on the compensation scheme enacted by the NCT.

One might argue that the magnitude of radiation doses received by Marshallese

would affect the total number of cancers to occur in the RMI and the amount of

money needed to completely fund the compensation program. In theory, that is true.

However, the NCI’s calculations indicate that the overall occurrence of cancer in the

RMI as a result of radiation exposure was increased by less than 10%. This again

is the reason that I stated that neither the radiation dose nor the number of radiation-caused cancers is highly relevant to the changed circumstances petition (or to

101

the financial difficulties of the NCT). The NCT set out on a course to compensate

all cancers. Eventually, 35%-40% of all people in the world, including Marshallese,

will develop cancer for natural (or what we call ‘‘unknown’’) reasons. Hence, the

NCT needed to plan on making payments for at least 5,000 naturally occurring cancers, i.e., 35% of the population alive in 1954 (0.35 x 14,000 = 4,900) plus the radiation cases, which the NCI has estimated adds a relatively small increment (about

500). The lifetime risk of cancer is about 35% worldwide and has been known for

many decades and should have been planned for. There are no changed circumstances with regard to that fact.

Mr. Pombo, you asked ‘‘was the geographic distribution of fallout the best guide

for the Tribunal in awarding those that may have even had naturally occurring cancers in the RMI.’’ The answer is no. For the reasons I have discussed, the geographic

distribution of fallout could be used to award individuals in a more prudent fashion

than is done presently. But the distribution of fallout has no bearing on where naturally occurring cancers would occur. The number of cancers to eventually occur for

natural reasons among the residents of any atoll is simply related to the size of the

population there. According to the NCI analysis (see Table 3 of their report to the

Senate Energy Committee), the southern atolls of the Marshall Islands had about

84% of the country’s population in 1958 and, therefore, about 84% of the natural

cancers (i.e., around 5400) would develop among those people. But those atolls also

had the lowest radiation doses, leading to an increase in the cancer rate at those

locations of less than 1.5%.

The CHAIRMAN. Thank you. Mr. Bearden.

STATEMENT OF DAVID BEARDEN, ANALYST IN ENVIRONMENTAL POLICY, CONGRESSIONAL RESEARCH SERVICE,

LIBRARY OF CONGRESS, WASHINGTON, D.C.

Mr. BEARDEN. Chairman, member of the committees, thank for

the opportunity to represent the Congressional Research Service at

today’s hearing.

I am speaking on behalf of a team of authors who contributed to

a CRS report on this topic. This report was released in March of

this year, to examine the Marshall Islands’ Changed Circumstances

Petition for additional compensation from the United States for

damages resulting from nuclear weapons tests in the 1940s and

1950s, and the viewpoint of the Bush Administration that further

compensation is not warranted.

Today, I will be summarizing my written statement, which presents an overview of the CRS report. In summarizing the CRS report, I will be reiterating some of the background information you

have heard today.

My statement and the full CRS report are submitted for the

record.

According to U.S. Government estimates, the United States has

spent $531 million in the Marshall Islands on various nuclear testrelated compensation and assistance.

This assistance includes health care, medical surveillance and

environmental monitoring, cleanup of soil contaminated from radioactive fallout, and resettlement efforts.

Enacted by Congress in 1986, the Compact of Free Association

established the Marshall Islands as a freely associated state and

created a nuclear claims fund of $150 million. This fund and subsequent returns on its investment were intended by the U.S. Government to provide an adequate amount for a full and final settlement

of compensation claims for damages from past nuclear weapons

tests.

102

Section 177 of the Compact established a Nuclear Claims Tribunal to adjudicate claims for compensation from this fund.

Section 177 also permits the Marshall Islands to request further

compensation in addition to the original $150 million under certain

conditions.

In summary, additional compensation may be sought if loss or

damages to persons or property arose or were discovered that could

not reasonably have been identified as of the effective date of the

agreement and if such injuries rendered the provisions of the Compact manifestly inadequate.

In September 2000, the Marshall Islands Government submitted

its petition to Congress requesting additional compensation pursuant to Section 177 of the Compact.

The petition requests compensation for personal injury awards,

property damages, which include the loss of land use, environmental cleanup costs, and hardships suffered; also health services

infrastructure, a health care program, radiation exposure monitoring, and other programs.

The petition justifies its claims of changed circumstances primarily upon information that it presents as new and additional

since the Compact’s enactment in 1986. For example, the petition

asserts that there is more extensive radioactive fallout than previously known or disclosed and that more stringent U.S. radiation

protection standards issued in 1997 and 1999 warrant further

cleanup of contaminated soil.

The petition requests a total of $3.3 billion in further compensation, which includes $14 million for personal injury, $949 million

for property damages, of which $522 million is for loss of past and

future use of the land, $50 million for medical services infrastructure, and $45 million annually over the next 50 years to fund a

health care program for those exposed to radiation. And that

amount is approximately the $2.3 billion that was mentioned earlier today for the health care program.

In January 2005, the Department of State released a report

dated November 2004, outlining the Bush Administration’s viewpoints on the legal and scientific basis of the Marshall Islands petition.

It concludes that the Marshall Islands request does not qualify

as changed circumstances within the meaning of the Compact. It

also disputes key claims of the petition regarding the geographical

extent of radioactive fallout, and the applicability of more recent

U.S. radiation protection standards for the cleanup.

Consequently, the Bush Administration contends that there are

not legal or scientific bases for considering additional payments.

Regarding loss of land use, the State Department’s report indicates that all losses and damages to property from past nuclear

tests were knowable and estimable prior to the Compact’s enactment in 1986.

The Bush Administration argues that the loss of land use, therefore, could have been reasonably identified at the time of the Compact and that the petition’s more recent loss estimates, in effect, do

not represent a changed circumstance warranting further compensation.

103

The CRS report identified four possible policy options in considering whether to provide additional financial compensation to the

Marshall Islands. These options for Congress include: grant or reject the Changed Circumstances Petition’s request in whole or in

part on the basis of the changed circumstances rationale; continue

congressional payments through appropriations measures on an ex

gratia basis; enact legislation that would provide for a full and

final settlement of claims; or last, through an amendment to the

Compact of Free Association, allow Federal courts to review the

judgments of the Nuclear Claims Tribunal and to decide whether

to order the United States to pay these awards in whole or in part.

Chairman, members of the committee, I hope this brief overview

of the CRS report will be helpful. We welcome your questions and

comments. I can respond to questions you may have regarding environmental cleanup, as I wrote that section of the CRS report, and

my fellow CRS specialists here with me today who also contributed

to the report can address other questions you may have relevant

to their areas of expertise. Thank you.

[The prepared statement of Mr. Bearden follows:]

Statement of David Bearden, Analyst in Environmental Policy,

Congressional Research Service

Mr. Chairman, Members of the Committees, thank you for the opportunity to represent the Congressional Research Service (CRS) at today’s hearing. I am speaking

on behalf of a team of authors who contributed to a CRS report on this topic. This

report was released in March of this year to examine the Marshall Islands’ Changed

Circumstances Petition for additional compensation from the United States for damages resulting from nuclear weapons tests in the 1940’s and 1950’s, and the viewpoint of the Bush Administration that further compensation is not warranted.

The CRS report examines several issues related to the personal injury, health

care, and property damages claims in the Petition to Congress. These issues include

estimated occurrence of radiation-related illnesses in the Marshall Islands; the

methodology for determining the value of ‘‘lost use’’ of damaged properties; U.S. radiation protection standards that could be used to determine whether further cleanup is necessary; and the extent of radioactive fallout. My testimony today presents

a summary of our report. A copy of the full report is submitted for the record.

According to U.S. government estimates, the United States has spent $531 million

in the Marshall Islands on various nuclear test-related compensation and assistance. This assistance includes health care, medical surveillance and environmental

monitoring, cleanup of soil contaminated from radioactive fallout, and resettlement

efforts. Congress provided about half of this amount in ‘‘ex gratia’’ payments, i.e.,

not compelled by legal right or formal agreement.

Enacted by Congress in 1986, the Compact of Free Association established the

Marshall Islands as a ‘‘freely associated state,’’ and created a Nuclear Claims Fund

of $150 million. This fund, and subsequent returns on its investment, were intended

by the U.S. government to provide an adequate amount for a ‘‘full and final settlement’’ of compensation claims for damages from past nuclear weapons tests. Section

177 of Article IX of the Compact established a Nuclear Claims Tribunal to adjudicate claims for compensation from this fund.

Section 177 also permits the Marshall Islands to request further compensation in

addition to the original $150 million under two conditions. Additional compensation

may be sought if loss or damages to persons or property arose or were discovered

that could not reasonably have been identified as of the effective date of the agreement; and if such injuries rendered the provisions of the Compact ‘‘manifestly inadequate.’’

In September 2000, the Marshall Islands government submitted its Petition to

Congress requesting additional compensation pursuant to Section 177 of the Compact. The Petition requests compensation for personal injury awards, property damages (including loss of land use, environmental restoration costs, and hardships suffered), health services infrastructure, a health care program, radiation exposure

monitoring, and other programs.

104

As discussed in the CRS report, the Petition justifies its claims of ‘‘changed cir- cumstances’’ primarily upon information that it presents as ‘‘new and additional’’

since the Compact’s enactment in 1986. This information includes Department of

Energy records that were declassified in the early 1990s, which indicated more extensive radioactive fallout than previously known or disclosed, and more stringent

U.S. radiation protection standards that the Petition says should be used to determine the degree to which additional environmental cleanup may be necessary.

These standards were issued in 1997 and 1999 and have been applied within the

United States in certain cases.

As a result of this and additional information, the Marshall Islands government argues that certain circumstances have changed. These changes include greater

than expected health consequences, higher costs of health care and environmental

cleanup, and lower than expected investment returns from the Nuclear Claims Fund

to pay compensation claims. Furthermore, the Petition asserts that the Nuclear Claims Fund constituted a

provisional ‘‘political settlement,’’ not a final determination based upon a conclusive

scientific assessment of costs. The Petition contends that by enacting legislation to

approve the Compact in 1986 Congress provided the authority to appropriate additional compensation should the need arise. In addition, legal counsel for the Marshall Islands maintains that U.S. courts left open the possibility that plaintiffs in

the Marshall Islands could return to the courts if they did not receive adequate compensation from the Compact.

The Marshall Islands’ Petition includes claims of $14 million for personal injury compensation, and $949 million in compensation claims for property damages to

Enewetak Atoll and Bikini Atoll. The amount for property damages includes $522

million for loss of past and future use of the land. The Nuclear Claims Tribunal,

established under the Compact, agreed that such compensation was warranted

under Section 177 of the Compact. The Petition also includes requests for other compensation, including $50 million for medical services infrastructure, and $45 million

annually over the next 50 years to fund a health care program for those exposed

to radiation. Combined, the total request for further compensation in the Petition

is nearly $3.3 billion. In January 2005, the Department of State released a report, dated November 2004, outlining the Bush Administration’s viewpoints on the legal and scientific

basis of the Marshall Islands’ Petition. The Departments of Energy and Defense

contributed to this report. It concludes that the Marshall Islands’ request does not

qualify as changed circumstances within the meaning of the Compact. It also disputes some key scientific claims of the Petition regarding the geographical extent

of radioactive fallout and radiation dose estimates, as well as the Petition’s claims

that more stringent U.S. radiation protection standards warrant further cleanup in

the Marshall Islands. Consequently, the Bush Administration denies that there are

no legal or scientific bases for considering additional payments.

Regarding loss of land use, the State Department’s report indicates that all losses

and damages to property from past nuclear tests were knowable and estimable prior

to the Compact’s enactment in 1986. The Bush Administration argues that the loss

of land use therefore could have been reasonably identified at the time of the Compact, and that the Petition’s more recent loss estimates, in effect, do not represent

a changed circumstance warranting further compensation.

The Administration’s report further suggests that the radiological health care

needs of the Marshall Islands, as requested in the Petition, are addressed in part

through health sector grants of approximately $16 million per year. Congress authorized these grants in amendments to the Compact in 2003. However, Marshall

Islands officials argue that the Petition’s requests were not a part of the bilateral

negotiations to amend the Compact, and that the amendments were not intended

to account for nuclear test compensation claims. They add that a large portion of

the expenditures noted by the Administration supported U.S. government research

into the effects of radiation on human beings and the environment. They argue that

such research therefore benefitted U.S. interests as well, rather than directly benefitting communities affected by the nuclear testing.

The CRS report identified four possible policy options in considering whether to

provide additional financial compensation to the Marshall Islands. These options include:

• Grant or reject the Changed Circumstances Petition’s requests, in whole or in

part, on the basis of the changed circumstances rationale;

• Continue congressional ad hoc, ex gratia payments through appropriations

measures;

• Enact legislation that would provide for a ‘‘full and final settlement’’ of claims;

or

105

1The CCP petition considers the personal hardships endured by the affected RMI population—

famine, near starvation, and death—part of the property damages because they were caused by

the severe limitations of the resources available on alternate habitation atolls. 2 According to one estimate, since 1954, the United States has provided $531 million to the

Marshall Islands for nuclear test damages, including compensation payments, environmental

cleanup and restoration, and resettlement programs. This total also includes an estimated $138

million in Department of Energy (DOE) radiological and health monitoring in the four affected

atolls and medical programs for the residents of Rongelap and Utrik through 2002. The Compact

of Free Association established a Nuclear Claims Fund (NCF) of $150 million for personal injury

and property damages claims, health care, medical surveillance and radiological monitoring,

trust funds for the four atolls, and quarterly distributions to the peoples of the four atolls for

hardships suffered. Beyond the broad guidelines under the Compact, there are no specific rules

on how the $150 million was to be spend. A U.S. State Department report suggests that lack

of funds is due to excessive damage awards by, for example, awarding damages to citizens

throughout the RMI although the incidence of nuclear damages appear to be more limited. See:

U.S. Department of State, Report Evaluating the Request of the Government of the Republic

of the Marshall Islands Presented to the Congress of the United States of America. November

2004.

• Through an amendment to the Compact of Free Association, allow federal

courts to review the judgments of the Nuclear Claims Tribunal and to decide

whether to order the United States to pay these awards, in whole or in part.

Mr. Chairman, Members of the Committees, I hope this brief overview of the CRS

report will be helpful. We welcome your questions and comments, which will be answered by relevant experts on the team of CRS specialists here with me who contributed to the CRS report. Thank you.

[Response to questions submitted for the record by David Bearden, Analyst

in Environmental Policy, Congressional Research Service, follows:]

CONGRESSIONAL RESEARCH SERVICE

Memorandum August 12, 2005

TO: House Committee on Resources

FROM : Salvatore Lazzari, Specialist in Public Finance, Resources, Science, and

Industry Division

SUBJECT: Follow-Up Questions from the Committee’s May 25th Hearing on the

RMIs, Changed Circumstances Petition

This memorandum is provided in response to your letter of June 28 concerning

the Republic of the Marshall Islands (RMI) Changed Circumstances Petition (CCP)

to the U.S. Congress. More specifically, the letter from Representative Richard W.

Pombo, Chairman of the House Committee on Resources, requests that the Congressional Research Service (CRS) address the following two committee questions.

Question 1: A large monetary component of the RMI petition is a request

for the loss-of-use of land. Can you briefly describe your findings in this

regard and if they resulted in a justification of this amount?

In September 2000, the RMI submitted their CCP to the U.S. Congress requesting

$3,300 million in additional compensation for U.S. nuclear testing on Enewetak and

Bikini atolls during the 1940s and 1950s. In 2000 and 2001, the Nuclear Claims Tribunal (NCT), which adjudicates damage claims filed by RMI citizens, awarded the

claimants the amount as judgment for personal injury and property damages. The

$3,300 judgment includes unpaid property damages awards for the atolls of

Enewetak and Bikini totaling $949 million, of which $522 million is for the lost use

of property ($278 million for Bikini and $244 million for Enewetak) from the date

of evacuation in the 1940s to the date of return, which is projected to be in 2026

(for Enewetak) and 2027 (for Bikini). The remaining $427 million ($949 million less

$522 million) is for other property damages: soil remediation and land restoration,

and hardship. 1 The award for $522 million, which is 15.8% of the total judgment,

is in addition to amounts already paid for loss-of-use, which, through the year 2000,

the NCT reports as about $129 million for both atolls (see Table 1).

CRS’s main finding is that the $522 million awarded by the NCT for loss-of-use

of Enewetak and Bikini but unpaid due to lack of funds, appears to be significantly

overstated. 2 The primary source of this overstatement is that the NCT’s estimation

methodology—the sample rent data, assumptions, and statistical procedures (i.e.,

the sampling technique and the use of the exponential regression model)—overestiVerDate 11-MAY-2000 13:32 Oct 24, 2005 Jkt 000000 PO 00000 Frm 00111 Fmt 6633 Sfmt 6621 J:\DOCS\21448.TXT HRESOUR1 PsN: HRESOUR1
106

3 Another illustration is the case of Runit Island of Enewetak atoll. This island has been indefinitely quarantined because it is used to store nuclear waste, and should thus be compensated based on its value at the time it was rendered unusable (plus interest). 4The NCT’s estimated 1997 rental of $4,167/acre, discounted at 8% for 30 years, is equivalent to land valued at $46,911/acre, which is nearly 2,000% greater than the $2,405/acre average

price for Hawaiian land, and 5,000% more than the $926/acre average price of farmland in the

continental United States generally. In 1997 the U.S. Fish and Wildlife Service purchased 5,300

acres of land in the South Kona district of the Hawaiian Islands at a total cost of $7.78 million,

or $1,468/acre, which translates into an estimated annual rent per acre of $130. In June 2002,

the average price of crop-land in Brazil was reported at $355/acre. In April 2005, 100,725 acres

mates the per-acre rental rate for land on Enewetak and Bikini, the key variable

in the loss-of-use calculation.

CRS found that the appraiser’s analysis done for the NCT overestimated rents on Enewetak and Bikini because Enewetak and Bikini are non-urban and land was

used largely for agricultural purposes. The analysts applied an exponential regression model to rents established not in a competitive, free market for agricultural

land on Enewetak and Bikini, but rather to government-established, and predominantly commercial, rents on the more urbanized, and densely populated, Majuro and

Kwajalein atolls. Most land in the RMI is leased at ‘‘the official government rate’’

established by the RMI cabinet. This rate, which was set by the RMI government

at $2,500/acre on January 1, 1979, and increased to $3,000/acre on October 1, 1989,

serves as the benchmark for all lease transactions.

The RMI government is not only the lessor in over 40% of the leases and a major source of the demand for RMI land, but in many of the sample leases cited in the

analysis, key government officials are also effectively the landlords of much of the

land, which means they are also a supply source. The applicability of the resultant

estimated average rentals from Majuro and Kwajalein to the distant, more agrarian,

less populated, and less productive atolls of Enewetak and Bikini appears questionable. Applying an exponential regression model to noncomparable and unrepresentative sample rent data leads to projected rents of $112,995/acre for the year 2027,

which is equivalent to land value of nearly $1,774,024/acre. The appraiser’s methodology also assumes that more land is lost to use, and for longer periods, than is actually the case (such as when vaporized islands are treated

as not having been vaporized). The NCT’s justification for making this assumption

was twofold. First, it argued that Enewetak and Bikini are ‘‘part of the environmental whole’’ and should not be separated into islets. However, this assumption

results in an inconsistency: Enewetak and Bikini atolls are treated as individual

land masses for purposes of 1) calculating the annual rental values on unvaporized

portions of the atolls, 2) adjusting for alternative habitation, and 3) adjusting for

prior loss-of-use compensation already paid by the U.S. government. But, Enewetak

and Bikini atolls are treated as collective land masses for the purposes of excluding

the vaporized portions of the atolls.

The second reason given for including the vaporized land portions in the loss-of- use calculation is that there are problems in determining the value of the vaporized

and otherwise unusable portions of Enewetak and Bikini. There should be no more

problems in valuing vaporized land than in valuing unvaporized land. Given the

equivalency between the value of land and the rentals earned on that land, an appropriate methodology would consider the vaporized land areas as being tantamount

to a permanent taking of property, and estimate the capitalized land value based

on the projected streams of rentals, using the estimated rentals at from the time

of pulverization. In this way, past loss-of-use estimates would include the rental

value of the vaporized portions up to the time of pulverization, and thereafter based

on the capitalized value of these portions of the land as assets, with interest. This

is the same as calculating future rents foregone, but it does so at the time of the

destruction of the land, whether from vaporization or any other cause. 3 The NCT

methodology also may undervalue the rentals on alternative atoll habitation, and

assumes that recipients of rental proceeds, as consumers and savers, would have

saved 100% of the rental proceeds.

The NCT’s estimated average rents/acre used in the loss-of-use calculation— $4,105/acre in 1996—also appears high when compared to average agricultural rents

in the United States: $17.50/acre in Montana, $115/acre in Oregon, $210/acre in

California, $88/acre in New Mexico (1995), and $66.50/acre for the United States

generally (1998). Using an alternative economic methodology, and applying it to

RMI’s national income and product accounts data, CRS has developed alternative

estimates of agricultural land rents for Enewetak and Bikini for the period 1982-

1990, which are more consistent with the underlying real (agricultural) use of the

two atolls (and the RMI economy), as well as with agricultural rents observed in

the United States and in regions in the Pacific. 4 CRS estimates rents/acre at $115/

107

of New Zealand forest land went on sale for $42/acre in New Zealand dollars (which, at the April

2005 exchange rate, converts to about $30/acre in U.S. dollars).

acre for the year 1982 rising to $258/acre for 1990, as compared with the NCT’s estimates of $1,902 for 1982 rising to $2,939 for 1990. Based on these rental rates, CRS

estimates gross loss-of-use rentals for 1982-1990 (before adjustments and interest)

of $6.4 million, about 10% of the $64 million estimated by the NCT for the 1982-

90 period. Note that these are gross rentals, unadjusted for the value of alternative

lands provided as habitation, prior loss-of-use compensation already provided by the

U.S. Government, and interest. CRS estimates also exclude the value of environmental amenities (as do the NCT estimates) of the non-usable ecosystem.

Thus, in conclusion, based on 1) an analysis of the NCT’s loss-of-use methodology,

2) empirical evidence of agricultural land rents in the continental United States,

Hawaii, and selected areas of the Pacific, and 3) estimates based on an alternative

economic methodology—one consistent with the real underlying productivity of agricultural lands on Enewetak and Bikini—the $522 million figure appears to be overstated, perhaps significantly.

Question 2: Have the amounts already allocated by the Tribunal for lossof-use thus far exceeded, in your view, what their true value should be?

Table 1 shows the amounts reported by the NCT as previously paid by the U.S.

Government to the RMI government for loss-of-use of the Enewetak and Bikini

atolls. These amounts represent the annual deductions made against estimated annual gross rentals to arrive at the $522 million figure—they are the amounts previously paid by the U.S. Government for loss-of-use. Note that the amounts paid

since 1986 are paid out of the $150 million Nuclear Claims Fund, while amounts

paid before that came from the budgets of various U.S. Government agencies, primarily the Interior Department.

As the table shows, through 2000, the United States has, according to the NCT,

paid $128.92 million for the lost use of the Enewetak and Bikini atolls. According

to the NCT figures in Table 1, the amount of loss-of-use compensation already paid

by the United States for the 1982-1990 period is $36 million, which is $29.6 million

more than the CRS estimated gross rental of $6.4 million for 1982-1990. Thus, CRS

finds that the for the period 1982-1990, the U.S. Government loss-of-use compensation already paid, exceeds the rental value of the land as estimated by CRS.

CRS cannot state, however, whether for the entire time horizon over which there

was past (or retrospective) loss-of-use (roughly 1946-2000) the $128.92 million already paid exceeds the gross annual rental value. The alternative methodology used

by CRS to estimate loss-of-use was developed from a neo-classical microeconomic

model of agricultural rents that uses data from RMI’s national income and product

accounts (NIPA). These data were available only for the period 1982-1990. CRS is

exploring the possibility of either obtaining NIPA data for additional years or adjusting the estimation methodology so as to generate gross rentals for other years

in the total loss-of-use time horizon (roughly the period 1946-2027). Should additional NIPA data become available, or should it be possible to estimate gross annual

rents for the remaining years in the loss-of-use time horizon, then it will be possible

to estimate annual gross rentals for these additional years, and to then compare the

results with loss-of-use payments in Table 1.

However, one might note that the degree of overstatement of gross rental value

for the limited time period 1982-1990 made by the NCT is significant by any measure. The NCT’s methodology estimates gross rentals of $64.2 million as compared

with CRS’s estimates of $6.4 million, an overstatement of over 900%. If the same

degree of overstatement arises for the other years in the past-loss-of-use calculation,

then it is possible that amounts already paid could exceed true rental value.

For more detail on the NCT’s loss-of-use estimates, including CRS’s alternative

estimates, see the attached CRS report RL33029.

CRS hopes this information is useful. Please let us know if we can provide additional assistance.

108

NOTE: The CRS report RL33029 has been retained in the Committee’s official

files.

The CHAIRMAN. Thank you. Mr. Bearden, I will just start with

you and ask you about environmental clean up.


Table 1. Prior Compensation for Loss-of-Use: Figures Used by the 

NCT ($ thousands) 

1i\~~it~;, .. ';ii~h;iii'ii0:~~' ·i.~;1 . J(' ·:"~;;:~i;;:;l' ·~l~~L~~1~1~:: . i ·.·.i ...... ii;~';iiJf.:. 

Date/Time Amount Date/Time Amount 

Period Period 

11/19/56 $175 11122/56 $325 

8/19/69 $1,020 1957-1976 None 

9/30/76 $750 

1977 None 2/14/77 $3,000 

12/18/78 $750 11/15/78 $3,000 

1979-1986 None 2/1/80 $1,400 

9/10/82 $3,000 

1982-1986 None 

1987 $3,250 1987 $5,000 

1988 $3,250 1988 $5,000 

1989 $3,250 1989 $5,000 

1990 $3,250 1990 $5,000 

1991 $3,250 1991 $5,000 

1992 $3,250 1992 $5,000 

1993 $3,250 1993 $5,000 

1994 $3,250 1994 $5,000 

1995 $3,250 1995 $5,000 

1996 $3,250 1996 $5,000 

1997 $3,250 1997 $5,000 

1998 $3,250 1998 $5,000 

1999 $3,250 1999 $5,000 

2000 $3,250 2000 $5,000 

Totals $48,195 $80,725 

Source: Memoranda of DeCISIOns and Order for Enewetak and Blkim attached to the Changed 

Circumstances Petition; and Administration evaluation of RMI Changed Circumstances Petition, 

November 2004. CRS Report RL32811, Republic of the Marshall Islands Changed Circumstances 

Petition to Congress. 
109

Mr. BEARDEN. Yes, sir.

The CHAIRMAN. What needs to be done to have all of the land

inhabitable from here on out? I mean is it possible to have people

move back onto their lands or we there yet? I mean we have heard

some conflicting testimony on that this afternoon.

I am just wondering if you can give me an idea of what is actually there.

Mr. BEARDEN. Well, Mr. Chairman, in terms of what is possible

with the environmental clean up, that always depends on the technologies available. In regard to the Marshall Islands, we’re talking

about contaminated soil, so removal of the soil and then replacement with soil to take its place since the islands themselves the

soil is fairly shallow there. It’s a matter of do you have enough

money and resources to remove that soil and do you have somewhere to put it to dispose of it safely.

It’s not a technologically complex exercise to remove the contaminated soil, unlike if you were remediating ground water contamination.

So the question with the Marshall Islands is how much are you

willing to remove in terms of the contaminated soil? Do you have

a place to put it? And how much money are you willing to spend?

Another question relevant to it is, what standard do you want to

apply to the cleanup to determine how much soil would have to be

removed to make it safe for an unrestricted use, such as human

habitation or agricultural purposes.

That cleanup standard is what is in dispute between the Bush

Administration and the Marshall Islands Government. The cleanup

standard that the Marshall Islands Government would like to use

is EPA’s recommended guideline of the 15 millirems that you’ve

heard today and referred to in various testimonies. And the Bush

Administration contends that 100 millirems would be sufficiently

protective. And that is the standard that the Department of Energy

uses at its own nuclear weapons cleanup sites in the United States.

There have been at least two instances where the Environmental

Protection Agency’s standard of 15 millirems has been used for the

cleanup of radioactive soil in the United States. That’s both at the

Hanford site in Richland, Washington, and the Rocky Flats site in

Colorado.

So there is some precedent for using it in the United States, but

it is not an enforceable standard that is required at all cleanup

sites. Therefore, it is decided in the United States on a case by case

basis.

The CHAIRMAN. What is the norm?

Mr. BEARDEN. The norm is the 100 millirem standard that the

Department of Energy uses for its clean up.

The CHAIRMAN. In regard to the loss of use of land, one of the

largest monetary components of the petition deals with that loss of

use of land. Can you briefly describe your findings in this regard,

and if they resulted in a justification of that amount?

Mr. BEARDEN. Mr. Chairman, my colleague with me here today,

Sal Lazzari, could address that topic if I might allow him to approach the microphone?

The CHAIRMAN. Yes. Just identify yourself for the record.

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Mr. LAZZARI. Thank you, Mr. Congressman. I’m Sal Lazzari. I am

an economist with CRS. And your question was again to justify the

$522 million loss of use estimate?

The CHAIRMAN. Correct.

Mr. LAZZARI. I cannot really speak in terms of justifying it. What

I have done in my work was to analyze the methodology, which

was used to generate those numbers.

The CHAIRMAN. Well, just tell me this: was it a changed circumstance? Was it something that could have been seen in 1986?

Was there something that changed that would justify it being in a

change petition?

Mr. LAZZARI. Yes. it was something that was knowable in 1986.

All the information was available at the time to estimate the

numbers. It does not really justify in my mind, based on my analysis, a changed circumstance. That is correct.

Ms. WATSON. On that issue, Mr. Chair, if I might.

The CHAIRMAN. Yes.

Ms. WATSON. When we there, we were being told that the process

of removing that contaminated top soil was very slow, and this was

2001, 2002. And because of it, they were not able to use that land,

so they could not grow any crops and so on. That I would identify

as a changed circumstance. You might have been able to determine

back when the 177 was agreed upon that it would take X number

of dollars, but doing it and actually finding a place to dump the soil

I think is a changed circumstance because it was not completed

when we were there, and that was just 3 to 4 years ago—3 years

ago.

The CHAIRMAN. Reclaiming my time, I would just remind my colleague that there is a difference between ongoing liability or responsibility that we have versus a change in circumstance. We may

agree that we have an ongoing liability here.

Ms. WATSON. We are talking apples and oranges?

The CHAIRMAN. Yes. What he is describing is whether or not they

knew in 1986 that they weren’t going to be able to use that land.

Ms. WATSON. If I might respond, we are talking about apples and

oranges.

The CHAIRMAN. Yes.

Ms. WATSON. Then I think the orange today is the fact that they

couldn’t estimate how long it was going to take and what the costs

would be because they——

The CHAIRMAN. And we may have an ongoing liability——

Ms. WATSON.—Were not able to——

The CHAIRMAN.—liability because of that.

Ms. WATSON. Yes.

The CHAIRMAN. But when we are dealing with a change of circumstance petition, it is something different, and that is what CRS

was asked to look at, was the change of circumstance petition. That

does not mean we don’t have ongoing liabilities here or Congress

may agree——

Ms. WATSON. So we are not talking about ongoing liabilities now?

The CHAIRMAN. Yes. And we are talking about the change of circumstance petition, and I mean this is something that we tried to

deal with last year.

Mr. LAZZARI. If I can clarify——

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The CHAIRMAN. Yes.

Mr. LAZZARI.—something on that? The point that you made,

Madam Congressman, really relates to soil remediation which is

part of the property costs. I did not deal with that, and you may

be right that there changed circumstances in that area for that

component. My analysis dealt with the $522 million that really has

to do with loss of use, which is a big fraction of the property damages, but it is separate from the soil remediation damages.

And in regard to the loss of use, all of the information in 1986

to estimate the loss of use for Enewetak and Bikini at least, anyway, was knowable and available, and, in fact, the estimates were

made—generated in 1997 and 1996 and presented as awards in the

year 2000 and 2001. All that information was available. There were

no changed circumstances with respect to that loss of use.

The CHAIRMAN. My time has expired. I am going to recognize Mr.

Abercrombie.

Mr. ABERCROMBIE. Thank you, Mr. Chairman, and thanks for

making that clarification. It is a good point.

I hope everybody understands that we are going to try to be dealing with this almost on two tracks.

Now, Dr. Mauro, I congratulate you. In all my years on this committee, I believe that this is the first time that someone’s resume

is longer than their testimony.

[Laughter.]

Mr. ABERCROMBIE. And I take it coming out of an academic background, I read through it with some interest, and I think it is quite

extensive. And I take it that maybe one of the reasons that you included virtually everything—I am quite willing to accept the fact

there may be even more out there that you didn’t include.

I did not read Mr. Bearden’s testimony the same way you may

have taken it. Now, the report itself that you referred to may have

taken exception to some of your conclusions. But certainly the testimony he presented today didn’t. His testimony today seems to be

more of a survey of the various elements that we have to take into

consideration. But you said in your testimony that you and Dr.

Behling, your conclusions that there were, in fact, change in circumstances, particularly with relation to incomplete estimates of

dose and changes in radiation and protection and cleanup standards were seen adversely by the CRS report and by the conclusions

reached by the State Department.

I didn’t see that, at least with respect to the CRS report. Could

you elaborate a little bit on that?

Dr. MAURO. Sure. The CRS report and the statement we just

heard rejects the 15 millirem pre-criteria as the applicable criteria

for cleanup of the Marshall Islands.

Mr. ABERCROMBIE. OK. Mr. Bearden, that wasn’t in the report

that you made? Excuse me. Is it in the report, but not in your testimony today?

Mr. BEARDEN. Congressman, the CRS report nor my testimony or

comments here today reject the applicability of the 15 millirem

standard. What CRS has identified is that it is decided in the

United States on a case by case basis for specific sites.

So if the Marshall Islands were in the United States, the 15

millirem standard may be applied or it might not. If it were in the

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United States and it were a former nuclear weapons test site, it

would most likely be under the jurisdiction of the Department of

Energy. And just like the Hanford site in Washington State and

the Rocky Flats site in Colorado, the Department of Energy and

the Environmental Protection Agency would enter in negotiations

to decide what standard to use.

Mr. ABERCROMBIE. I understand that part, but did you say you

actually reject it? I use the CRS all the time, and they very seldom

say what should be accepted or rejected to me. Usually they make

the kind of analysis that you just made, where you lay it, and then

we make a judgment.

Mr. BEARDEN. Yes, Congressman. That is correct. The word ‘‘reject’’ is not in the CRS report.

Mr. ABERCROMBIE. OK.

Mr. BEARDEN. The phrase that I did use in my report is that the

application of the 15 millirem standard is not necessarily the case

in the United States——

Mr. ABERCROMBIE. OK.

Mr. BEARDEN.—based on numerous factors.

Mr. ABERCROMBIE. All right. Yes. On that, I will editorialize a bit

here. I would agree with you, Dr. Mauro, that it is a changed circumstance or could be construed as a changed circumstance, although I could certainly be persuaded by the Chairman that this

is an ongoing liability, and I mean that; that in dealing with this

and the honest answer from me is I could care less what the hell

the standard is in the United States. These are other people. These

weren’t citizens of the United States. We dropped—you know, we

tested hydrogen bombs, for Christ’s sake, out on these people. If

they want to say 15 milligrams, that is OK with me—millirems

rather. And if the people of the United States are willing to be hit

with radiation and accept that kind of crap from its own government, that is our problem.

But so——

The CHAIRMAN. Is that the end of the editorial comment?

Mr. ABERCROMBIE. Yes. That is the end of the editorial comment.

And apparently, at least in Hanford, they are not willing to accept it. I would like to know whether the people who accept the

hundred millirems who they are. Everybody else I guess. I don’t

know.

Dr. Mauro, then, the heart and soul, if you will, of your testimony is that you cite in quite a lot of detail the following. Let me

make sure that I understand what it is. And, Dr. Simon, I read

through your statement, and I am not quite sure whether you are

in agreement or disagreement here as a result of reading it, so let

me give you what I consider to be Dr. Mauro’s conclusions, and

then if you want to arm wrestle them, you can do that. OK?

Essentially, what Dr. Mauro is saying is that the—he is not arguing that the amount of radioactive material is any more than

might have been cited or not cited in the reports, and, in fact, given

half life situations presumably it decreases, even marginally, year

by year.

But his point is as he reads Section 177 in the Settlement Agreement that there is now a more—I am going to quote for you him

directly now—‘‘a more complete understanding of radiation expoVerDate 11-MAY-2000 13:32 Oct 24, 2005 Jkt 000000 PO 00000 Frm 00118 Fmt 6633 Sfmt 6602 J:\DOCS\21448.TXT HRESOUR1 PsN: HRESOUR1
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sures and potential health impacts that were experienced by the

people of the Marshall Islands due to weapons testing, and that

these exposures and potential health consequences are much larger

than previously believed.’’ That is one point.

And the second point is that in addition, subsequent to the establishment of Section 177, the radiation protection standards for

members of the public and the cleanup criteria for sites contaminated with radioactive materials changed dramatically. The standards are a lot more protective now.

So that would mean that he and Mr. Bearden are not essentially

in disagreement; that there is a standard that is more protective

now—15 millirems versus 100 millirems is I presume a significant

difference. Now, whether one agrees that it should be that or not

is a separate issue.

So would you conclude, Dr. Simon, or can you comment, on those

two points that Dr. Mauro essentially is saying that we know more

than we did before about the radiation exposures and potential

health impacts of those radiation exposures and, second, regarding

cleanup criteria and contaminated sites that the cleanup standards

can be construed as much more protective now? Because as I read

your testimony—the reason I’m asking you the question, Dr.

Simon, is as I read your testimony, I wasn’t quite sure whether you

were saying there was more radiation than had been actually

taken into account or less, particularly in the light of Dr. Bouville’s

testimony that the National Cancer Institute really hadn’t taken

into account much in the way of radiation studies and fallout studies, but had merely compared cancer rates with Native Hawaiians

and cancer rates with Marshall Islanders and then drawn its conclusions with regard to baseline cancer rates.

Dr. SIMON. Congressman, that was a very long question. Could

you focus it for me, please?

Mr. ABERCROMBIE. Yes. Well, I am not so sure it was a question.

I was asking for your comments.

Dr. SIMON. That’s fine.

Mr. ABERCROMBIE. Your testimony in the context of Dr. Mauro’s

statement that there are changed circumstances because we know

more about the radiation fallout patterns and we know more about

the potential health consequences of that and that we have more

stringent standards now with respect to cleanup.

Dr. SIMON. I’ll try and answer the best I can.

Mr. ABERCROMBIE. Sure.

Dr. SIMON. I don’t believe that Dr. Mauro testified that we know

more about fallout patterns today. Did you?

He did not.

Mr. ABERCROMBIE. OK. Then I am misstating it. More about radiation exposures and potential health impacts.

Dr. SIMON. Well, my life is studying health effects of radiation,

so I would hope that after additional 10, 15, 20 years that we

would indeed know more, so I certainly would not disagree with

that.

Mr. ABERCROMBIE. OK. It may be a phrase of art. But you were

here, I know, when Dr. Bouville was——

Dr. SIMON. Of course.

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Mr. ABERCROMBIE.—explaining the National Cancer Institute.

From what I can gather. Now, you know, I am just trying to read

the testimony.

Dr. SIMON. Yes, and I’m willing to——

Mr. ABERCROMBIE. I am not sure that he used your work. Why

did the Cancer Institute use all the work that you have done all

these years?

Dr. SIMON. They did, sir.

Mr. ABERCROMBIE. OK.

Dr. SIMON. I would like to just refer back to my opening remarks.

Mr. ABERCROMBIE. OK.

Dr. SIMON. I am employed by the National Cancer Institute presently.

Mr. ABERCROMBIE. OK.

Dr. SIMON. I am here today representing myself.

Mr. ABERCROMBIE. Yes.

Dr. SIMON. You know that, and in that context I can discuss the

NCI work only in a very limited sense. It’s unfair to ask me to

discuss——

Mr. ABERCROMBIE. OK.

Dr. SIMON.—their work. But I think it’s——

Mr. ABERCROMBIE. Well, if Mr. Chairman, will note, I am never

unfair.

Dr. SIMON. Well, it’s fair to say this I think because it’s referenced in the report, so you could be reading it just as well; that

the NCI report did indeed use the findings of the RMI-sponsored

nationwide radiological study. It did use those.

Mr. ABERCROMBIE. So do you conclude there are some changed

circumstances that are here or are we talking about ongoing liability, in your personal capacity?

Dr. SIMON. Well, there’s a whole range of issues, in fact——

Mr. ABERCROMBIE. You know nobody—let me——

Dr. SIMON. All right.

Mr. ABERCROMBIE. Two seconds.

Dr. SIMON. OK.

Mr. ABERCROMBIE. I will start again.

Dr. SIMON. All right, please.

Mr. ABERCROMBIE. I am calling on you because I am very impressed with your testimony and your background and your work

here, and I respect it and so I am interested—do you feel this is

an ongoing liability or do you feel it is a changed circumstance the

way it is being cited in terms of Dr. Mauro talking about incomplete estimates of dose and changes in radiation protection and

cleanup standards?

Dr. SIMON. All right. Well, there’s a whole number of—you

named at least two or three points there that I could answer your

question separately on. In terms of incomplete dose, I think——

Mr. ABERCROMBIE. Is it an ongoing liability or is it a changed circumstance?

Dr. SIMON. Well, I don’t think anyone would argue that there’s

not an ongoing liability.

Mr. ABERCROMBIE. OK. And what about the question of incomplete estimates of dose? Maybe they are more complete than we

115

known and we can rely on you for that. What about changes in radiation protection and cleanup standards?

Dr. SIMON. There have been changes in different agencies’ recommended guidelines for clean up. I’m not an expert in clean up.

I know quite a bit about it because it’s in the realm of health physics, but I don’t do it routinely.

There have been different agencies recommendations. Dr. Mauro

summarized them.

Mr. ABERCROMBIE. Which have changed since 1986?

Dr. SIMON. For certain applications, yes. There is no—these are

not law. These are to be used under certain conditions where it’s

practical and where it’s dictated by other interests that I can’t comment on.

Mr. ABERCROMBIE. Right. That is regulatory changes. OK. I

am——

Dr. SIMON. I’m not trying to be evasive.

Mr. ABERCROMBIE. No. No. You are not. No, you are being very

helpful. You are being very helpful. In other words, what the

Chairman has to do and what we have to do under his direction

is make some decisions here with regard to what is ongoing liability and what is indeed changed circumstances——

Dr. SIMON. I think you’re correct.

Mr. ABERCROMBIE.—And try to be sensible about it.

Dr. SIMON. I think you’re very correct.

Mr. ABERCROMBIE. Right?

Dr. SIMON. That is correct.

Mr. ABERCROMBIE. Thank you. You have all been very, very helpful and this testimony and the reports are extraordinarily helpful.

The CHAIRMAN. Ms. Watson, do you have questions?

Mr. Faleomavaega.

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman.

The CHAIRMAN. How was the trip downtown?

Mr. FALEOMAVAEGA. I offer my apologies, Mr. Chairman, for not

being here, as I had another conflict in schedule.

The CHAIRMAN. I asked your questions for you, so do not worry.

Mr. FALEOMAVAEGA. Again, I cannot thank you enough, Mr.

Chairman, and our good colleague, Mr. Abercrombie, for taking up

during here in terms of what we are trying to accomplish here. I

really appreciate the testimonies that have been brought forth by

Dr. Mauro, Dr. Simon, and Mr. Bearden.

If it is all right, Mr. Chairman, I do have just a couple of questions. OK. Quick and easy.

As a layman, I wanted to ask Dr. Simon what seems to be the

difference between rads, roentgen, and millirems.

Dr. SIMON. Do you really want to know?

Mr. FALEOMAVAEGA. Well, let me ask you this because as I read

it in this report in 1955 the measurement of I guess radioactivity

in these islands was using millirems. MRs?

Dr. SIMON. No. Actually, I know the 1954 report very well. That

was before the use of millirem was very conventional. And although they used a small ‘‘R’’ in that report, I know for a fact that

it was actually roentgen, which today is abbreviated by a capital

‘‘R.’’ But that’s just because there was not a convention established

at that time.

116

Mr. FALEOMAVAEGA. What is the standard measurement that we

now use. EPA has the different standard?

Dr. SIMON. Well, what you’re asking about are actually the units

in which I measure something. For example, I can either quote my

weight in pounds or kilograms.

Mr. FALEOMAVAEGA. No. No. No. I want to know the units that

is the standard procedure, not just by Dr. Simon or Dr. Mauro.

What is the accepted standard of measuring radiation exposure to

the human being?

Dr. SIMON. Well, I can address that, sir. I did build a radiation

laboratory in the Marshall Islands and know a bit about it.

You measure different kinds of radiation in different ways and

each one has their own technical requirements.

Mr. FALEOMAVAEGA. Well, let me ask you this. As I may have

stated earlier, according to the cumulative dosages by event and location, the island of Rongelap ended up with 202,000——

Dr. SIMON. Yes.

Mr. FALEOMAVAEGA. Millirems.

Dr. SIMON. The way that number was generated was the following. I’ll make this—try to make it very simple.

That was the result of a single very quick measurement by an

aerial survey. So they went. They flew over the island, the Atomic

Energy Commission sponsored planes.

They made a measurement of the rate of the exposure. How

many roentgens per second or per minute or per hour. And

they——

Mr. FALEOMAVAEGA. Dr. Simon, what does this do to the human

being? That is what I am trying to get at.

Dr. SIMON. Now, you’ve misdirected.

Mr. FALEOMAVAEGA. OK.

Dr. SIMON. I mean, now you’ve changed the question that you’ve

asked me. What does it do?

Mr. FALEOMAVAEGA. Yes. If this island of Rongelap was exposed

to 202,000 millirems, what does this do to human beings living on

the island of Rongelap when we dropped Bravo?

Dr. SIMON. What it does when you are exposed to radiation, it

increases the risk over the remaining life that you have of developing a disease that is—some diseases that are potentially caused

by radiation. So it increases the likelihood.

Unless it reaches a very high level, it may not do anything immediately. There are immediate effects at very high levels. For example, your hair can fall out. Your skin can be burned. You can develop cataracts in your eyes. But primarily, over the long time, it

increases the chance that you will be one of those people that develop cancer. You may be lucky, ’cause you have good genes, and

maybe you won’t.

But it increases that chance. And when you have a group of people, it will increase, on average, the number within that group that

will develop——

Mr. FALEOMAVAEGA. Will you agree as a result of our nuclear

testing program, there has been a tremendous increase of incidence

of cancer—thyroid cancer—all different kinds of illnesses related to

the nuclear testing program that has affected the health of these

Marshallese people?

117

Dr. SIMON. Sir, I certainly would not disagree that there has

been an increase in the amount of cancer in the Marshall Islands

that we’ve been testing.

Mr. FALEOMAVAEGA. Dr. Mauro?

Dr. SIMON. The extent of that decrease is addressed in the NCI

report.

Dr. MAURO. We heard the answer to the question. The National

Cancer Institute estimates 530 additional cancers, based on their

models. We have done the same analysis several years ago. Our

numbers come in a little higher, but not inconsistent with that. So

the estimate that the NCI came up with in terms of 530 additional

cancers due to the radiation exposure is within the realm that I

would say I would concur. But my numbers probably come in a little bit higher because our dose estimates that we believe these

folks are——

Mr. FALEOMAVAEGA. Can you help me how the NCI managed to

use Native Hawaiians as the baseline in terms of incidence of cancer to the study that was done for the Marshallese? I am at a loss

here. Yes, Dr. Mauro.

Dr. MAURO. I’d be happy to explain my understanding of reading

I guess the—I did not read the NCI report. I read the other reports

that were referenced here, the Congressional Services report. Let

me explain my understanding of what they say.

Knowing the doses that the folks experienced from fallout, you

could predict the number of cancers—thyroid cancers and all other

types of cancers—based on the reconstruction of the doses.

On that basis, they come up with an estimate of 530 additional

cancers are anticipated because of those doses.

Now, the baseline comes in when they discuss a 9 percent increase. See so the number that they—the way I understand it is

the absolute number, 530, is based specifically—you calculate a

person’s radiation dose or how many people got how much radiation.

Mr. FALEOMAVAEGA. OK. You are getting really way above me

now.

Dr. MAURO. OK.

Mr. FALEOMAVAEGA. Let us come back to earth. OK?

Dr. MAURO. OK.

Mr. FALEOMAVAEGA. I think the estimates at the time of our

nuclear test here was about 14,000 Marshallese. As of this date,

what is the population of the Marshall Islands? About forty-some

thousand? Fifty thousand? And may I ask both gentlemen is there

any effect genetically on what happened to those people who were

initially exposed to nuclear radiation in generational terms of their

children and their grandchildren 50 years later? Is there a sense

that this has—is there cancer incidence to the Marshallese because

of the genetics formats—being exposed to it? Is this an accurate description or we don’t know enough? And because we don’t know

enough, therefore, there is changed situation; right?

Dr. MAURO. I’ll try to answer your question. The genetic effects

of radiation. There’s every reason to believe that the levels of radiation exposure experienced by the people of the Marshall Islands

did, in fact, have adverse genetic effects that are being passed on.

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However, the epidemiology of the problem, the statistics of it, you

cannot discern the increase in the population because in normal

background levels of genetic effects in populations are highly variable, and if you do have some increase, it’s difficult to detect the

presence of that increase.

So we have every reason to believe that, yes, the folks in the

Marshall Islands did experience an increased incidence of genetic

effects, but you cannot discern them as easily as you could discern

the increase in the incidence of cancer.

By the way, this is exactly what happened in Nagasaki and Hiroshima. There is every reason to believe that the survivors of the

atomic bomb experienced an increase incidence of genetic effects,

but to this date, we cannot statistically demonstrate, a statistically

significant increase that’s been observed in the incidence of genetic

effects.

Mr. FALEOMAVAEGA. In other words, just the difficulty of the

whole issue of this nuclear exposure. We just don’t know enough.

I mean, we are learning, right, Dr. Simon?

I mean this not a sure thing.

Dr. SIMON. Of course.

Mr. FALEOMAVAEGA. And I am just——

Dr. SIMON. Absolutely——

Mr. FALEOMAVAEGA.—I am just trying to get a sense here. I was

in Kazakhstan, Mr. Chairman, last year, invited by the president,

and to my surprise, Mr. Chairman, I found out that 1.5 million

Kazaks were exposed to the Russian nuclear testing program for

some 30 years where they detonated 500 nuclear bombs, including

the hydrogen bombs that they made.

Mr. Chairman, just one or two observations. We have conducted,

as you said earlier, Mr. Chairman, over 30 hearings now, and there

has got to be some resultant effect in terms of I certainly would

look forward in working with you that we have to develop some

sense of finality, and what the good people and the leaders of the

Marshall’s have been trying to resolving themselves. This nuclear

commission that they have—claims commission, I think there is

merit to what they have made recommendations for. I do feel really

bad when I keep hearing these numbers being thrown around—2.3

billion there. Five hundred twenty million there. It makes it sound

as if the Marshallese are just taking all this money, and if there

is so much money that we are spending for the needs of these people, and yet somehow we seem to be spinning our circles here or

wheels and not making any sense.

And, Mr. Chairman, as Mr. Abercrombie said earlier, I sincerely

hope that we might be able to develop some kind of legislation

bearing some concerns about the land claims as opposed to the

medical needs of the good people of the Marshalls, and I look forward in working with you in that respect, and thank you very

much.

Thank you, our friends who testified.

Ms. WATSON. One final question.

The CHAIRMAN. Yes.

Ms. WATSON. Thank you, Mr. Chairman. Just something that I

need to hear. Let us take what Dr. Simon noted in his written testimony, and the nationwide radiological study and its scientific adVerDate 11-MAY-2000 13:32 Oct 24, 2005 Jkt 000000 PO 00000 Frm 00124 Fmt 6633 Sfmt 6602 J:\DOCS\21448.TXT HRESOUR1 PsN: HRESOUR1
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visory panel stated that the current levels of radioactive contamination of the territories, the Marshall Islands pose no risk of adverse health effects to the present generation. Do each of you agree

or disagree with that assertion?

Dr. SIMON. I’d like to go first because that was the statement of

the advisory panel——

Ms. WATSON. Yes.

Dr. SIMON.—that oversaw the study that I conducted and was

appointed by the Marshall Islands Government for that very purpose.

There was—of course, there was nothing that that—well, first let

me preface and say that the members of that panel were appointed

from those group of scientists who have very, very high reputations

internationally and are very knowledgeable. In fact, probably the

world’s foremost radiation geneticist, Dr. Sancar, from the Netherlands was on that panel. Probably the foremost. I don’t think anyone would disagree with that. And I don’t disagree with any of the

statements that that panel made as well.

But I want you to understand that that is the radiation exposure

today looking into the future. It’s not about what happened in the

past.

Ms. WATSON. So you would agree with what they said. It poses

no risk of adverse health effects for the present generation?

Dr. SIMON. Yes, I would agree with that.

Ms. WATSON. You agree with that? What about the other two of

you?

Dr. MAURO. I would not agree with that, and I think it needs an

answer. The places where the people on the Marshall Islands are

living right now, which—they are not living on Bikini or on

Rongelap or in the northern atolls or of Enewetak because the radiation levels are dangerously high. OK. First of all, let’s make that

clear.

Where they are living are areas where the radiation levels are

lower, much lower, but are above many places the normal levels

that are—in other words, they’re still elevated. There are many

places, for example, on Utrik and Jaluit. There are marginally increased levels of exposure, but they are very low exposure. So,

therefore, there is an incremental increase in their risk, but it’s

very, very small.

So I think it’s only fair to say that, yes, there is an increase risk

in some of the atolls where people are currently living, but it’s extremely small. Certainly, if they were to relocate to Enewetak or

Bikini or Rongelap, the risk would be much, much higher.

Ms. WATSON. Thank you. And, Dr. Simon?

Dr. SIMON. Congressman, please. Dr. Mauro is right. In addition

to the statement that you read, there are some other explanation

points in there.

There are four atolls noted in that report from where you took

that statement from that are noted that have locations where the

panel believed it would be inappropriate to resettle. So it’s not a

completely—a blanket statement. And so I do agree with Dr.

Mauro that there are some locations—and they are noted very explicitly where they are.

Ms. WATSON. Well, to no risk to present generations?

120

Dr. SIMON. Well, those four atolls that have locations where we

believe that it would be inappropriate to resettle because of an increase in risk, no matter how large or how small, those are noted

there. There are four—there are islands on four atolls that are

noted.

Ms. WATSON. Well, I think what I am hearing as the answer is that you do not support the statement that you——

Dr. SIMON. No, ma’am.

Ms. WATSON.—reiterated. Very good. Because we saw, we actu- ally visually saw the second and third generation who had abnormalities that could only be generated from fallout. So, thank you.

The CHAIRMAN. If there are no further questions of this panel,

I want to thank the panel for their testimony. It has been——

Mr. ABERCROMBIE. If I could just make a concluding remark?

The CHAIRMAN. Mr. Abercrombie.

Mr. ABERCROMBIE. The concluding remark I want to make, for

those who came such a long way from the Marshall’s themselves

and for those of you who have devoted your life, as you have, Dr.

Simon and others have to the situation, I just want to say believe

me; you are in good hands with Chairman Pombo. There is not a

more there person in the U.S. Congress than Chairman Pombo.

And I can say that on behalf of all of the members in the minority

this issue as a whole and the particulars of it will be well researched and taken into account and whatever conclusion comes

out will be a very sober and serious one, and I’m sure that everyone, if not pleased with everything, will find that it’s fair and complete.

The CHAIRMAN. Thank you. I thank the witnesses for your testimony and members of the Committee for their participation in this

hearing. Members of the Committee may have some additional

questions for the witnesses, and we will ask you to respond to

those in writing.

The hearing record will be held open for that purpose. If there

is no further business, I again thank the members of the Committee and all of our witnesses. The Committee stands adjourned.

[Whereupon, at 6:22 p.m., the Committee was adjourned.]

[A statement submitted for the record by Jonathan M. Weisgall

on behalf of The Peoples of Bikini, Enewetak, Rongelap, and Utrok,

follows:]

Statement of Jonathan M. Weisgall on Behalf of

The Peoples of Bikini, Enewetak, Rongelap and Utrok

I. Introduction

Mr. Chairman, thank you for giving the peoples of the four atolls of Bikini,

Enewetak, Rongelap and Utrok the opportunity to testify on issues relating to the

changed circumstances petition contained in the Compact of Free Association. I have

served as legal counsel to the people of Bikini Atoll since 1974, but I am submitting

this joint statement on behalf of the four atolls that were most directly affected by

the U.S. nuclear testing program in the Marshall Islands.

For decades, Congress has recognized and addressed the special needs of the peoples of the four atolls, and we believe that testimony from their representatives

today would have helped make this hearing record more complete, especially with

respect to factual and legal issues involving the Compact Section 177 Agreement.

Nevertheless, we are pleased to submit our written testimony as part of the submission of the Marshall Islands Government.

Our issue is simple: We all filed lawsuits against the United States in the 1980s

for the property damage inflicted on our atolls and, in some cases, for personal injuVerDate 11-MAY-2000 13:32 Oct 24, 2005 Jkt 000000 PO 00000 Frm 00126 Fmt 6633 Sfmt 6621 J:\DOCS\21448.TXT HRESOUR1 PsN: HRESOUR1
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1 Blanchette v. Connecticut General Insurance Corp., 419 U.S. 102, 124-25 (1974), quoting Cherokee Nation v. Southern Kansas Railroad Co., 135 U.S. 641, 659 (1890). 2Trusteeship Agreement for the Former Japanese Mandated Islands, 61 Stat. 3301,

80thCong., 1st Sess. (1947), Art. 6, Sec. 2. 3See, e.g., Peter Pringle and James Spigelman, The Nuclear Barons (Holt, Rinehart and Winston 1981) pp. 243-59. 4 New York Times, March 25, 1954, pp. 1, 18.

5 Jonathan M. Weisgall, Operation Crossroads: The Atomic Tests at Bikini Atoll (Naval Institute Press 1994), pp. 304-05.

ries as well. Those claims were dismissed by U.S. courts as part of the overall Compact Section 177 Agreement, pursuant to which the United States and the Republic

of the Marshall Islands (RMI) governments established the Nuclear Claims Tribunal

to hear these claims. The Tribunal has made awards to the peoples of Bikini and

Enewetak, and will issue ones soon to Rongelap and Utrok, but it lacks the funds

to pay any of these awards. Those lawsuits are property rights protected by the takings clause of the Fifth Amendment to the U.S. Constitution, which has been found to apply to the Marshall

Islands. Under well established Supreme Court decisions going back to 1890, Congress has every right to close the doors of U.S. courts to lawsuits and take away

those property rights as long as it provided for an alternative method of compensation and provided that at the time of the taking there is ‘‘reasonable, certain and

adequate provision for obtaining compensation.’’ 1

The Tribunal has paid out less than one-half of one percent of these judgments because it lacks the necessary funds. For the United States to throw these lawsuits

out of U.S. courts, to establish such a Tribunal to resolve these claims, and then

to fail to fund the Tribunal adequately constitutes a taking under the Fifth Amendment of the nuclear victims’ property, makes the establishment of the Tribunal a

hoax, makes a mockery of the Compact, and arguably renders the Compact null and

void.

The executive branch of the U.S. Government refused to negotiate with the RMI on this issue in the recent Compact talks. There is a clear and simple solution to

the problem if Congress is willing to implement it. If not, the four atolls will have

no choice but to return to court to continue what in some cases has been more than

a 30-year history of suing the United States to force it to own up to the damage

it caused to the citizens of the Marshall Islands in the course of spending trillions

of dollars to win the Cold War.

II. Background on Nuclear Testing Program in the Marshall Islands

In the 12-year period from 1946-1958, after moving the peoples of Bikini and Enewetak off their atolls, the United States conducted 67 atomic and hydrogen atmospheric bomb tests there, with a total yield of 108 megatons. This is 98 times

greater than the total yield of all the U.S. tests in Nevada. Put another way, the

total yield of the tests in the Marshall Islands was equivalent to 7,200 Hiroshima

bombs. That works out to an average of more than 1.6 Hiroshima bombs per day

for the 12-year nuclear testing program in the Marshalls. During these years, the

Marshall Islands was a United Nations Trust Territory administered by the United

States, which had pledged to the United Nations to ‘‘protect the inhabitants against

the loss of their land and resources.’’ 2

Radioactive fallout from one of those tests—the March 1, 1954 Bravo shot at Bikini—drifted in the wrong direction and irradiated the 236 inhabitants of Rongelap

and Utrok Atolls as well as the crew of a Japanese fishing vessel. Bravo, the largest

U.S. nuclear test in history with an explosive force equal to nearly 1,000 Hiroshimatype atomic bombs, touched off a huge international controversy that eventually led

to the U.S. moratorium on atmospheric nuclear testing and the U.S.-U.S.S.R. Limited Nuclear Test Ban Treaty. 3 President Eisenhower told a press conference that

U.S. scientists were ‘‘surprised and astonished’’ at the test, and a year later the

Atomic Energy Commission (AEC) admitted that about 7,000 square miles downwind of the shot ‘‘was so contaminated that survival might have depended upon

prompt evacuation of the area....’’ 4 Put another way, if Bravo had been detonated in Washington, DC, and the fallout pattern had headed in a northeast direction, it

would have killed everyone from Washington to New York, while near-lethal levels

of fallout would stretch from New England to the Canadian border. 5

The statistics 59 years after testing began:

• The Bikinians have been exiled from their homeland since 1946, except for a

brief period after President Johnson announced in 1968 that Bikini was safe.

Many of the islanders returned and lived there until 1978, when medical tests

by U.S. doctors revealed that the people had ingested what may have been the

largest amounts of radioactive material of any known population, and the peoVerDate 11-MAY-2000 13:32 Oct 24, 2005 Jkt 000000 PO 00000 Frm 00127 Fmt 6633 Sfmt 6621 J:\DOCS\21448.TXT HRESOUR1 PsN: HRESOUR1
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6Los Angeles Times, July 23, 1978, p. 3.

7 Edwin J. Martin and Richard H. Rowland, Castle Series (Defense Nuclear Agency Report No. 6035F 1954), pp. 3, 235; Robert A. Conard et al., A Twenty-Year Review of Medical Findings

in a Marshallese Population Accidentally Exposed to Radioactive Fallout (Brookhaven National

Laboratory 1974), pp. 59-76, 81-86). 8 Compact Section 177 Agreement, Article I, Section 2.

9 Id., Article IV, Section 1(a).

10 Id., Articles X and XII. 11 Juda v. United States, 13 Cl.Ct. 667, 688 (1987). He repeated this point later: ‘‘Plaintiffs

are not deprived of every forum. An alternative tribunal to provide compensation has been provided.’’ Id. at 689. 12 As the noted constitutional scholar Gerald Gunther wrote, ‘‘[A]ll agree that Congress cannot

bar all remedies for enforcing federal constitutional rights.’’ Gunther, ‘‘Congressional Power to

Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate,’’ 36

Stan.L.Rev. 895, 921 n. 113 (1984).

ple were moved off immediately. It turned out that an AEC scientist made a

careless mathematical error, throwing off by a factor of 100 the radioactive dose

the returning Bikinians would receive. ‘‘We just plain goofed,’’ the scientist told

the press. 6

• Approximately half the Enewetak population cannot return to their home

islands in the northern part of the atoll, where radiation still renders the

islands too radioactive. The Runit Dome, containing over 110,000 cubic yards

of radioactive contaminants, remains on Enewetak Atoll.

• At least four islands at Bikini and five at Enewetak were completely or partially vaporized during the testing program.

• Although they were over 100 miles from Bikini, the people of Rongelap received

a radiation dose from Bravo equal to that received by Japanese people less than

two miles from ground zero at Hiroshima and Nagasaki. They suffered from radiation poisoning, all but two of the nineteen children who were under ten at

the time of Bravo developed abnormal thyroid nodules, and there has been one

leukemia death. 7 The people were moved off the islands for three years after

the Bravo shot, and they moved off again in 1985 amid concerns about radiation

dangers.

• The people of Utrok were returned to their home atoll a mere three months

after Bravo and were exposed to high levels of residual fallout in the ensuing

years. This unnecessary exposure led to thyroid problems and other cancers.

• The inhabitants of Rongelap and Utrok were the subjects of a medical research

program designed to understand the effects of ionizing radiation, and they continue to suffer from radiation-related diseases. Indeed, recent Department of

Energy whole body counting data has shown that the people living on Utrok are

still exposed to radioactive cesium-137.

III. 1980s Court Cases and the Compact

In the 1980s, the peoples of the four atolls and other Marshall Islanders brought

lawsuits against the United States for property and other damages totaling more

than $5 billion. During the litigation, the U.S. and RMI governments signed the

Compact and the subsidiary Section 177 Agreement, which established a $150 million Nuclear Fund, income from which was earmarked for the peoples of the four

atolls ‘‘as a means to address past, present, and future consequences of the Nuclear

Testing Program.’’ 8 Income was also earmarked to fund a Nuclear Claims Tribunal,

which was established with ‘‘jurisdiction to render final determination upon all

claims past, present and future, of the Government, citizens, and nationals of the

Marshall Islands which are based on, arise out of, or are in any way related to the

Nuclear Testing Program.’’ 9

The Section 177 Agreement also provides that it constitutes the full settlement

of all claims, ‘‘past, present and future,’’ of Marshall Islanders and their government

against the United States arising out of the testing program, and another section

provides that all such claims pending in U.S. courts are to be dismissed. 10

Faced with these provisions, Judge Harkins of the U.S. Claims Court dismissed

the nuclear cases after the Compact went into effect, but he emphasized that ‘‘in

none of these cases has Congress abolished plaintiffs’ rights. The Compact recognizes the United States obligations to compensate for damages from the nuclear

testing program and the Section 177 Agreement establishes an alternative tribunal

[the Nuclear Claims Tribunal] to provide such compensation.’’ 11 Judge Harkins recognized the obvious point that Congress cannot close the doors of U.S. courts to a

constitutional taking claim unless it provides for an alternative method of compensation. 12 However, the exercise of this power, as noted by the U.S. Supreme

123

13 Blanchette v. Connecticut General Insurance Corp., 419 U.S. 102, 124-25 (1974), quoting Cherokee Nation v. Southern Kansas Railroad Co., 135 U.S. 641, 659 (1890). 14 453 U.S. 654, 689 (1981). 15 Juda v. United States, supra, 13 Cl.Ct. at 689. 16People of Enewetak, Rongelap and other Marshall Islands Atolls v. United States, 864 F.2d 134, 136 (Ct. App. Fed. Cir. 1988). 17Dames & Moore, 453 U.S. at 687. 18See also Justice Powell, concurring, id. at 691: ‘‘The Court holds that parties whose valid

claims are not adjudicated or not fully paid may bring a ‘‘taking’’ claim against the United

States in the Court of Claims, the jurisdiction of which this Court acknowledges. The Government must pay just compensation when it furthers the Nation’s foreign policy goals by using

as ‘‘bargaining chips’ claims lawfully held by a relatively few persons and subject to the jurisdiction of our courts.’’

Court, is subject to the overriding requirement that ‘‘there must be at the time of

taking ‘reasonable, certain and adequate provision for obtaining compensation.’’’ 13

A situation nearly identical to this one arose in Dames & Moore v. Regan, in which the United States dismissed pending claims against Iran under the agreement for the release of the U.S. hostages. The plaintiff, which owned one of these

claims, argued that the alternative forum provided by that agreement, the U.S.-Iran

Claims Tribunal, would not provide ‘‘reasonable, certain and adequate provision for

obtaining compensation,’’ because its claim might not be paid in full. The Supreme

Court found that the Tribunal was an adequate alternative forum and therefore

upheld the agreement, noting, however, that the Claims Court remained open ‘‘to

the extent petitioner believes it has suffered an unconstitutional taking by the suspension of the claims.’’ 14

Applying this same standard, Judge Harkins found that the ‘‘settlement proce- dure, as effectuated through the Section 177 Agreement, provides a ‘‘reasonable’’

and ‘‘certain’’ means for obtaining compensation.’’ However, he was not so sure

about whether the procedure would provide adequate funding: ‘‘Whether the compensation in the alternative procedures...is adequate is dependent upon the amount

and type of compensation that ultimately is provided through these procedures.’’ In

essence, he imposed an ‘‘exhaustion of remedies’’ test for the claimants: Because the

Nuclear Claims Tribunal was not yet in existence, he held that ‘‘[w]hether the settlement provides ‘‘adequate’’ compensation cannot be determined at this time....This

alternative procedure for compensation cannot be challenged judicially until it has

run its course.’’ 15

On appeal, the U.S. Court of Appeals for the Federal Circuit reached a similar

conclusion: ‘‘Congress intended the alternative procedure [the Nuclear Claims Tribunal] to be utilized, and we are unpersuaded that judicial intervention is appropriate at this time on the mere speculation that the alternative remedy may prove

to be inadequate.’’ 16

Seventeen years have passed since that court’s decision, and history has shown

that the peoples of the four atolls were right: The Nuclear Claims Tribunal has ‘‘run

its course,’’ to use Judge Harkins’ phrase, and it cannot pay these claims. After

lengthy trials, it awarded $386 million to the people of Enewetak for loss of use,

restoration, and hardship, and $563 million to the people of Bikini, but it has paid

out less than one-half of one percent of these awards. Unlike the Dames & Moore

case, where the alternative system of relief—the U.S.-Iran Claims Tribunal—was

appropriate because it was ‘‘capable of providing meaningful relief,’’ 17 the remedy

here was simply not adequate. 18

IV. Bona Fides of the Nuclear Claims Tribunal and Size of its Awards

Before discussing a possible Congressional solution to this dilemma, it may be

useful to address head-on two contentious questions: First, was the Nuclear Claims

Tribunal process valid or did the ‘‘home field’’ advantage result in skewed and inflated awards? Second, how should Congress deal with what some describe as the

‘‘sticker shock’’ of these awards?

As to the first question, we direct your attention to a May 20, 2005 letter to

Chairman Pombo from former U.S. Attorney General Dick Thornburgh, who conducted an independent investigation of the Nuclear Claims Tribunal. ‘‘Simply stated,’’ Attorney General Thornburgh writes, ‘‘the report finds that the [Nuclear Claims

Tribunal] fulfilled the basic functions for which it was created in a reasonable, fair

and orderly manner, and with adequate independence, based on procedures, closely

resembling legal systems in the United States, that are entitled to respect.’’

The Thornburgh report also concluded that property damage claims before the

Tribunal have been asserted through class action vehicles similar to those used in

the United States, with litigation ‘‘characterized by the kind of legal briefing, expert

reports, and motion practice that would be found in many U.S. court proceedings,’’

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19Dick Thornburgh et al., ‘‘The Nuclear Claims Tribunal of the Republic of the Marshall

Islands: An Independent Examination and Assessment of its Decision-Making Process’’ (Kirkpatrick & Lockhart, LLP 2003), p. 2. 20Stephen I. Schwartz, ed., Atomic Audit: The Costs and Consequences of U.S. Nuclear Weapons Since 1940 (Brookings Institution Press 1998), pp. 101-03. The dollar figures in this book,

expressed in 1996 dollars, have been updated through 2004 using a cumulative Consumer Price

Index increase of 21.9% from 1996-2004. See http://www.bls.gov/cpi/home.htm#tables. 21 Id. at 61-62. 22 Id. at 63. 23 Id. at 65-75. 24 U.S. Atomic Energy Commission, Thirteenth Semiannual Report of the Atomic Energy Com- mission (1953), p. 18. 25Status Report on Path to Closure (U.S. Department of Energy, Office of Environmental Management) (March 2000) at 11 (http://web.em.doe.gov/closure/fy2000/index.htmlv); Closure

Planning Guidance (U.S. Department of Energy, Office of Environmental Management) (June

1, 2004) at 14 http://www.em.doe.gov/vgn/images/portal/cit—1819/26/34/94385Vol1—Final—

Printed—Version—Word4.pdf. 26 Accelerating Cleanup: Paths to Closure (U.S. Department of Energy, Office of Environmental Management) (June 1998) at 2, 5-8. See also Environmental Management: Program

Budget Totals (FY 1998-FY 2000) and Environmental Management’s FY 2000 Congressional

Budget Request.

and hearing procedures and rules of evidence that resemble those used in administrative proceedings in the United States. 19

As to the second issue—the amount of the Tribunal’s awards—we wish to bring the following points to the attention of this Committee: • The people of Bikini presented cleanup options that ranged as high as $1 billion. The option selected by the Tribunal, with a cost of just over $250 million,

is the same cleanup method recommended by the U.S. Department of Energy’s

contractor, Lawrence Livermore National Laboratory. • These cleanup costs must be considered in the context of the cost of the tests

themselves. Defense Department costs for all nuclear tests in the Marshall

Islands exceeded $5.2 billion. 20 Civilian costs are harder to calculate, but in

transferring its materials, facilities and properties to the new AEC in 1946, the

Manhattan Project spent $3.8 billion to manufacture nine new atomic bombs

and continue research. 21 The AEC spent over $4.3 billion from July 1, 1946 through June 30, 1947, 22 and from 1948-1958, the AEC spent nearly $130 bil- lion on production research, development, and testing of nuclear weapons. 23

• The United States never questioned the cost or value of the nuclear tests at Bikini and Enewetak, because they assured U.S. nuclear superiority over the Soviet Union and led to immediate savings of billions of dollars in the Defense

Department budget in the late 1940s and 1950s. As the AEC told Congress in

1953: ‘‘Each of the tests involved a major expenditure of money, manpower, scientific effort and time. Nevertheless, in accelerating the rate of weapons development, they saved far more than their cost.’’ 24

• Although the Compact Section 177 Agreement states that it constitutes the full

settlement of all claims arising out of the nuclear testing program, other sections of the Compact make clear that Congress intended to leave the door open

for other funding programs for the four atolls. For example:

Æ Section 103(h)(2) of the Compact of Free Association Act (Pub. L. 99-239) established the Enewetak Food and Agriculture Program, which Congress has

funded for 19 years at an annual amount of between $1.1 and $1.8 million

because it recognized the challenge of providing food to the Enewetak people. Æ Section 103 (i) authorized funding for the radiological cleanup of Rongelap

Island, and Congress subsequently appropriated $45 million for a Rongelap

resettlement trust fund. Æ Article VI of the Section 177 Agreement ‘‘reaffirms’’ the U.S. ‘‘commitment to

provide funds for the resettlement of Bikini Atoll,’’ and Section 103 (l) of the

Compact declares that ‘‘it is the policy of the United States...that because the

United States...rendered Bikini Atoll unsafe for habitation,...the United

States will fulfill its responsibility for restoring Bikini Atoll to habitability....’’

Congress subsequently appropriated $90 million for the radiological cleanup

of Bikini Atoll. See Pub. L. No. 100-446.

• The Department of Energy’s budget for the cleanup of radioactive, chemical and

other hazardous waste at 53 U.S. nuclear weapons production and development

sites in 23 states dwarfs the numbers under consideration here. That cleanup

program has been estimated to cost between $168- $212 billion. 25 Congress appropriated an average of $5.75 billion annually for the program in the late

1990s, and it is anticipated that this funding level will continue at this rate indefinitely. 26

125

27 Environmental Management: Progress & Plans of the Environmental Management Program (November 1996) (DOE/EM-0317) at 120; Closure Planning Guidance, supra n. 25, at 35, 65-

66.28See http://www.usdoj.gov/civil/omp/omi/Tre—SysClaimsToDateSum.pdf. 29Thornburgh Report, supra n. 17 at 3 30Thomas Lum, et al., ‘‘Republic of the Marshall Islands Changed Circumstances Petition to

Congress,’’ Congressional Research Service Report RL32811 (March 14, 2005) at 6 (hereinafter

‘‘CRS report’’).

• The U.S. Government spent more than $10 billion at the Hanford, Washington

nuclear weapons site without removing one teaspoonful of contaminated soil. 27

That is what DOE has spent on studying radiation problems at an area exposed

to a minuscule percentage of the radiation that was unleashed in the Marshall

Islands.

• The U.S. Government has already approved compensation claims of more than

$917 million to claimants were on-site at Nevada nuclear tests, those downwind

from the testing, and those working a radioactive mines. 28 The nuclear tests in

Nevada were nearly 100 times smaller in magnitude that the tests conducted

in the Marshall Islands. 29

V. Proposed Legislative Solution

As suggested by the March 14, 2005 Congressional Research Service report on the

changed circumstances petition listing Congress’ policy options, the RMI government and the four atolls urge you to adopt the legislation to ‘‘[a]llow the federal

courts...to review the judgments of the Nuclear Claims Tribunal and potentially to

order the United States to pay these awards, in whole or in part.’’ 30 The legislation

would read as follows:

Section 103(g) of United States Public Law 99-239 (99 Stat. 1775) is

amended by adding a new paragraph (3) as follows:

‘‘Judgments of the Nuclear Claims Tribunal established pursuant to Article IV of the Section 177 Agreement with respect to claims for loss or damage to property or person that have not been fully paid or otherwise satisfied may be presented for review and certification to the United States

Court of Appeals for the Federal Circuit, or its successor court, which shall

have jurisdiction therefor, notwithstanding the provisions of Article X, XI,

and XII of the Section 177 Agreement or 28 U.S.C. 1502, for the limited

purposes set forth in this paragraph only, and which court’s decisions shall

be reviewable as provided by the laws of the United States. The United

States Court of Appeals for the Federal Circuit shall review such judgments, certify them and order payment thereof pursuant to 28 U.S.C. 1304,

unless such court finds, after a hearing, that any such judgment is manifestly erroneous as to law or fact, or manifestly excessive. In either of such

cases, the United States Court of Appeals for the Federal Circuit shall have

jurisdiction to modify such judgment. In ordering payment, the Court shall

take into account any prior compensation made by the Nuclear Claims Tribunal as a result of such judgment. In any such certification proceeding the

Government of the United States shall stand in the place of the Defender

of the Fund and shall be a party to and may oppose certification or payment of judgments of the Nuclear Claims Tribunal.’’

This legislation would:

• Put the major component of the ‘‘changed circumstances’’ petition—property

claims—back where they started, in the courts, which, on a daily basis, deal

with factual and legal issues concerning damage claims.

• Resolve the outstanding legal flaw in the Compact 177 scheme set forth at pp.

3-5, above, that has resulted from the inability of the Tribunal to pay awards.

• Restore to the federal courts the same jurisdiction they have over other claims

from the Trusteeship era. The proposal closely tracks the language of Section

174 (c) of the Compact, under which the United States waives sovereign immunity for all claims arising from its previous actions as Administering Authority

of the Trust Territory, other than those claims settled by the Section 177 Agreement.

• Relieve Congress of its traditional role of dealing with these nuclear legacy

issues. The Section 177 Agreement imposed a political settlement on a legal

matter. Congress is ill-equipped to resolve these issues, given the need for a detailed review of scientific, medical and legal questions, but courts deal with

them all the time.

• Would provide a source of funding for the nuclear legacy issues other than the

appropriations process, because any award upheld by the U.S. Court of Appeals

126

31See ‘‘Opening Statement of Hon. Gerald M. Zackios, Minister for Foreign Affairs and Chief

Compact Negotiator, 4th Round of RMI-U.S. Compact Negotiations, Honolulu, Hawaii, August

28-29, 2002 at 8-9: See also March 27, 2003 letter from Albert V. Short, U.S. Compact Negotiator, to Republic of the Marshall Islands Minister of Foreign Affairs Gerald Zackios: ‘‘We cannot...address requests for any additional assistance related to the Nuclear Testing Program since

this issue is on a separate track. It is now before Congress via the RMI’s request submitted

under the changed circumstances provision of the Agreement between the U.S. and the RM.I

for the implementation of section 177 of the Compact.... [A]n interagency group will study the

request and respond to Congress separately from the Compact negotiations.’’ 32See U.S. Department of State, ‘‘Report Evaluating the Request of the Government of the

Republic of the Marshall Islands Presented to the Congress of the United States of America,’’

November 2004.

for the Federal Circuit would be paid from the Claims Court Judgment Fund

established for awards against the United States under 28 U.S.C. § 1304. • Would protect the role of the executive branch by ensuring that the Justice Department can appear to oppose payment or offer modifications to any proposed

award. In addition, any new awards would be discounted by amounts already

paid under the Compact. • Would be consistent with other Compact provisions (see p. 7, above) that show

the Section 177 Agreement was not intended to provide total compensation tot

the peoples of the four atolls.

There are three venues the four atoll groups can pursue to seek redress for this issue. The executive branch refused to negotiate the matter during the recent Compact negotiations 31 and ignored the issue in its long-overdue response to the changed circumstances petition in January 2005. 32 We are now before the legisla- tive branch, but in what may be the only House hearing to examine the legacy of

the Compact and the issues raised by the changed circumstances petition, this committee hasn’t even seen fit to invite representatives of the four atolls to testify, so

we are forced to submit this testimony as an addendum to the Republic of the Marshall Islands’ testimony and hope that it receives some attention. The third option is to go to the judicial branch without any enabling legislation. Whether—and when—that occurs depends in part on the reaction of this committee

to our legislative proposal but also on the various timetables the four atolls face in

bringing legal actions. For example, the Nuclear Claims Tribunal issued its award

to Enewetak in April 2000. Viewing that judgment as a property claim and facing

a six-year statute of limitations in the U.S. Claims Court for bringing such claims

again the United States, Enewetak’s counsel must file a case within eleven months

at least to protect his clients’ interests. Bikini’s six-year period will expire in March

2007, while the other two atolls have yet to receive Tribunal awards but expect to

be in the same legal posture as Bikini and Enewetak once their awards are granted.

In one sense, payment of the Tribunal’s awards can be seen as part of the

changed circumstances petition, because no one assumed at the start of the Compact

that the United States would fail to discharge its responsibility. On the other hand,

this dilemma stands on its own outside the petition, because it represents an attempt by the United States to wash its hands of legal obligations to people it damaged and other people who, with no real options, gave up their lands to help the

United States win the Cold War.

VI. Congressional Research Service Report

Although we disagree with some of the Congressional Research Service (CRS) report’s conclusions, we welcome the report as a significant contribution to the record

before this committee. In fact, it represents the most conscientious effort of any federal entity to define the legal and policy issues under the Section 177 Agreement

that Congress must address. That said, the merits of the Nuclear Claims Tribunal’s

awards—and the inability of the Tribunal to pay them—cannot be dismissed in staff

reports for Congress. They are real and must be dealt with.

This testimony is not the appropriate means to respond to the detailed analysis

and discussion in the CRS study, but the peoples of the four atolls are concerned

with several key points. We have concerns about the report’s conclusions regarding

radiation dose estimates in the Marshall Islands as well as the appropriateness of

U.S. standards for the cleanup of radioactive contaminants in the Marshalls to protect human health and the environment. Those issues, however, are well covered by

Dr. John Mauro in the testimony he is presenting to you today, so this testimony

will cover just a few of the key issues concerning the report’s comments on the loss

of use methodology adopted by the Tribunal in its property claim awards.

We also have concerns about the report’s conclusions concerning the appraisals of

Enewetak and Bikini. In general, the CRS report praises the Tribunal’s methodology

and the appraisal reports it relies on. On not one, but three separate occasions, the

127

33 CRS report at 4, 18, and 21. 34 Id. at 22. 35 Id. 36 Id.

CRS report states that ‘‘the methodology used by the Nuclear Claims Tribunal to

estimate the value of the lost use of the claimants’ property is considered to be reasonable and appropriate.’’ 33 It also embraces the methodology of the appraisal report relied on by the Tribunal as ‘‘rooted in sound economic and financial theory,

and the methodology itself is standard methodology used by economist, as well as

the courts, in solving similar problems.’’ 34

Nevertheless, the CRS report raises a number of questions about the appraisals

of Bikini and Enewetak. The appraisers employed by those atolls have responded

to these criticisms and questions with a six-page letter, which we look forward to

sharing with the CRS staff, especially as the report states on page 2 that this report

will be updated. A few of the issues are covered below:

• The report criticizes the appraisals for using ‘‘lease transactions from distance

atolls which may not reflect the rents on Enewetak and Bikini.’’ 35 In fact, there

were no leases from these two atolls, so the appraisers prepared the most comprehensive database of real estate transactions ever compiled in the Marshall

Islands, and later refined these 500-plus transactions to 196 after eliminating

non-arms-length deals, non-cash considerations, duplicates, and records without

adequate documentation. This database is: nondiscriminatory; representative of

overall market activity in the Marshalls; accepted by numerous other appraisal

organizations; and the best information available.

• The report criticizes the resulting data as reflecting ‘‘rents set by government

decree rather than as the equilibrium of supply and demand for the use of land

in a competitive real estate market.’’ 36 However, this rate has been the dominant factor in the marketplace, as more than half the transactions studied involve leases between private parties who by mutual agreement adopted the

then-existing government rate, and many leases actually indexed the government rate for future escalations and renewals.

• The report questions the use of comparables in commercial centers as opposed

to more remote locations in the Marshall Islands. In fact, the appraisers considered—and rejected—good faith payments made to Kwajalein Atoll landowners

for use of Kwajalein as a U.S. military based, which would have increased the

average rental in the appraisers’ database by about 32 percent.

• The report argues that vaporized lands should be treated as permanent takings,

and their values calculated that way, but fee simple doesn’t exist in the Marshalls; no one can sell their birthright ownership in land. These cases involved

loss of use, not loss of ownership.

Again, we appreciate your willingness to consider our views, and we and our legal

representatives are available at any time to work with you and your staff.

Thank you, and we welcome any follow-up questions from staff.

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